The case of Victoria Gillick v West Norfolk and Wisbech Area Health Authority
(1985)

When thinking of consent in children and young people, we may talk of Gillick Competence, but who was Mrs Gillick and what is the story behind this landmark ruling more than 30 years ago?

Introduction

To say that Mrs Gillick was angry is an understatement. She felt her rights as a parent had been undermined by a set of government guidelines issued to doctors and endorsed by her Local Area Health Authority. Furthermore, she believed that this guidance amounted to condoning and even encouraging under-age sex. Mrs Gillick, a mother of four daughters at the time, all under 16, took legal action and what happened in the court and at subsequent hearings of her case would fundamentally change the way we view and assess the competence of children to make treatment decisions.

Background

In December 1980, the Department of Health and Social Security (DHSS) issued guidance on family
 planning services for young people, which stated, or implied, that at least in certain cases which were described as 
‘exceptional,’ a doctor could lawfully prescribe contraception for a 
girl under 16 without her parents’ consent. Mrs Victoria Gillick regarded this stance as illegal and objected in the strongest terms to her Local Area Health Authority — West Norfolk and Wisbech — and sought their assurance that her children would not be given advice or prescribed contraceptives without her knowledge or consent. She wrote in March 1981, “I formally FORBID any medical staff employed by Norfolk
 A.H.A. to give any contraceptive or abortion advice or treatment whatsoever to my four daughters whilst they are under 16 years without my consent.” She received no satisfactory assurance that this would be the case and took legal action against both the Area Health Authority and the DHSS in August 1982.

The Court Cases

The case went initially to the High Court in 1984 where Mr Justice Woolf who presided turned down Mrs Gillick’s claim and dismissed the action.

He noted:

“…whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent.”

However, Mrs Gillick appealed and the following year was successful in having this decision overturned. Against that decision, the DHSS appealed to the House of Lords in October 1985 and the case was examined by the Law Lords — Scarman, Fraser and Bridge.

Mrs Gillick’s case was centred on her loss of parental rights and the legality of the DHSS’s position, and the judges reviewed these in turn.

The Law Lords examined the issue of ‘parental rights’ and concluded that these only really exist for the benefit of the child and effectively dwindle as the child grows in age and maturity. Lord Scarman stated that this ‘parental right yields to the child’s right’ when she acquires ‘sufficient understanding and 
intelligence.’

The judges also firmly concluded that any doctor who exercised his or her clinical judgement in offering contraceptive advice to a girl under 16 without her parent’s consent would not be guilty of an offence.

With these rulings the decision of the Court of Appeal, which had overturned the original ruling, was itself quashed, and Mrs Gillick had lost.

This case will be remembered, however, not for what it said about the legality of offering contraceptive advice to minors, but for its more general rulings on child consent. The case afforded the judges the opportunity to address the issue of competence in those under 16 more generally, and in so doing to create the concept of ‘Gillick competence.’

Lord Scarman ruled,

“I would hold that as a matter of law the parental right to determine whether or not their minor 
child below the age of 16 will have medical treatment terminates


 
if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.”

Thus, Gillick competence allows a child under 16 to consent to or refuse medical treatment, and it is up to a doctor to decide whether a child has the maturity and intelligence to fully understand the nature of the treatment, the options, the risks involved and the benefits. That competence is deemed also to be ‘situation dependent’—that is, it applies only to the treatment in question. A child may be deemed Gillick competent to understand one treatment, but not another. If a competent child consents to treatment, no one can override that decision. However, a competent child who refuses treatment may, in some circumstances, be overruled by those with parental responsibility or by a Court.

Gillick competence vs Fraser Guidelines

There has been much confusion regarding the terminology used in this area. In the 1990s there was a widely held belief that Mrs Gillick, who had lost the appeal, objected to her name being attached to the concept of adolescent competence. As such, an alternative term ‘Fraser competence’ was introduced and widely recommended. This referred to the guidelines proposed by Lord Fraser in the same 1985 House of Lords judgement that defined Gillick competence. Unlike Lord Scarman’s ruling, these guidelines were very specifically concerned with contraceptive advice and treatment.

Lord Fraser stated, “the doctor will, in my opinion, be justified in proceeding without the parents’ consent or even knowledge provided he is satisfied on the following matters:

  1. that the girl (although under 16 years of age) will understand his advice;
  2. that he cannot persuade her to inform her parents or to allow him to inform the parents that she is 
seeking contraceptive advice;
  3. that she is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment;
  4. that unless she receives contraceptive advice or treatment her physical or mental health or both are 
likely to suffer;
  5. that her best interests require him to give her
 contraceptive advice, treatment or both without the 
parental consent.
”

These guidelines do not have any general application, and the term ‘Fraser competence’ should be completely avoided as it is not, and never has been, a synonym for ‘Gillick competence’. But, what of Mrs Gillick’s feelings on the matter? In 2006, the author of a BMJ editorial took the entirely reasonable step of writing to ask her if she objected. Mrs Gillick replied saying that she “has never suggested to anyone, publicly or privately, that [she] disliked being associated with the term ‘Gillick competent’”.

Conclusion

When treating children and young people, we have an overriding duty to act at all times in their best interests. The Gillick rulings have served to clarify what can and cannot be done in this area, but they have also brought into focus the importance of involving competent children in medical decisions that will affect them. The NSPCC reminds us that all professionals working with children must ‘balance children’s rights and wishes with our responsibility to keep children safe from harm.’

And what of Victoria Gillick? She remains active — a mother of ten children and now with 42 grandchildren, she has continued to work and campaign against under-age sex and abortion. In 2002, she won an apology and damages in a libel case against a teenage sexual health advice charity. She claimed they had alleged that her challenge against the legality of contraception guidelines was one of the reasons for a rise in teenage pregnancies during the 1980s. More recently, she has spoken out on matters of immigration, and is supportive of her husband, who is a former Ukip member of the Cambridgeshire County Council.

© Allan Gaw 2017

 

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