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Whose body? Children and medical treatment

There was a very difficult case in the law reports this week that has brought to the forefronts of our mind the issue of who can consent to medical treatment for a child.

The case involves a little girl who has just turned 13, whose grandmother noticed a bump at her waist and took her to see the GP. The girl turned out to be 21 weeks pregnant. She was sure that she wanted to terminate the pregnancy. The NHS trust involved asked the court urgently to assess whether the girl was able sufficiently to understand the options available to her, and to make her own decisions about what should happen next. If the court found she did not have that ability, the Trust asked the court for a declaration that it would be in the girl’s best interests to have a termination.

For obvious reasons this is a very sensitive case. The reports rightly tell us little of the girl’s circumstances, and there are reporting restrictions in place.

The law that applies in these circumstances is clear: there is no rule that a child under 16 either has or lacks the legal capacity to consent to or refuse any form of medical examination or treatment. Each child is assessed on the basis of his or her own understanding and intelligence. The case that established this legal principle came in the mid-1980’s (known as Gillick), and was brought by a mother who felt that it was wrong that doctors could prescribe contraceptives to under-16s without their parents’ knowledge. The court decided in that case that if the doctor concluded that the child had capacity, the prescription could be made, whether or not it was objectively in the child’s best interests to do so.

This means that the legal position in this child’s circumstances was that if she did have capacity to decide she wanted a termination, that was the end of the matter for the hospital and they would be able legally to carry out her wishes without fear of subsequent legal action.

However, there was some doubt about whether this 13-year old did have capacity to decide. As she was ‘uncommunicative’, the doctors were unsure whether she had enough understanding about her choices and their potential implications to make a decision, leaving the NHS trust potentially open to legal action after the event if they got it wrong, so they sought the court’s guidance.

The court directed that a highly experienced paediatric psychiatrist should interview the child and make an assessment of the degree of her understanding, then report back to the court. Due to the urgency of the matter, this happened on the morning of the court hearing. The psychiatrist’s evidence is appended to the court’s judgment.

The psychiatrist was clear that the girl, although softly spoken, knew and understood her options and what their implications might be. She had not been influenced by her family to make a decision either way. She was clear in her decision that she could not cope with the continuance of her pregnancy. The court therefore was able to make the declaration requested by the NHS Trust that the girl had the capacity to make her own decisions about medical treatment and intervention, and therefore that the Trust would not be liable for following her wishes.

The court did not, could not and would not tell the child what to do, of course: she could have gone through with the termination or she could have changed her mind. The court was simply able to say that she was of sufficient intelligence and understanding to decide for herself. We wish her and her family all the very best.

This case is a neat exploration of the concept of ‘Gillick competence’, as it is referred to by lawyers from the case that established the principle. It is the point where the arbiter of the child’s best interests in medical terms is the child himself or herself, and what the parents or the court thinks about that child’s welfare is less relevant. There have been numerous cases over the years involving major treatment decisions, often relating to teenagers following the Jehovah’s Witness faith who decline to have potentially life-saving blood transfusions; it is fair to say the court is often quicker to deny a child’s ability to decide when his or her life is at risk from the decisions they want to make.

The concept of Gillick competence has been quite revolutionary in family law. The initial declaration that children could, if sufficiently mature and intelligent, be the ones to make the decisions about their bodies has carried over into the way children are now listened to much more when their parents need to make arrangements for them after divorce or separation, or make a move abroad, or in relation to other decisions about their upbringing. However, in relation to children’s arrangements on divorce or separation, there is no right to decide in the same way as there is with medical treatment. When they are of sufficient age and understanding, children’ bodies are generally their own – family arrangements, however, are not their exclusive decision.

If you’d like to make an appointment to see us about any issue raised in this blog or any other family law matter, please give Gail, Sue, Adam or Simon a call on 01223 443333.

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