Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 (17 October 1985)

Mrs Gillick challenged DHSS guidance allowing doctors to provide contraceptive advice and treatment to girls under 16 without parental consent. The House of Lords held that parental rights yield when a child achieves sufficient understanding and intelligence to make their own decisions about medical treatment, establishing the 'Gillick competence' test.

Facts

Mrs Victoria Gillick, mother of five daughters under 16, sought a declaration that guidance issued by the Department of Health and Social Security (DHSS) in December 1980 was unlawful. The guidance indicated that doctors could, in exceptional cases, provide contraceptive advice and treatment to girls under 16 without parental consent. Mrs Gillick had written to her local Area Health Authority seeking assurance that her daughters would not receive such treatment without her consent, but was refused. She claimed the guidance infringed her parental rights.

The DHSS Guidance

The revised guidance stated that while doctors should normally seek to persuade girls under 16 to involve their parents, in exceptional cases the decision whether to prescribe contraception must be for the clinical judgment of the doctor, even without parental knowledge or consent.

Issues

The House of Lords considered three main issues:

• Whether a girl under 16 has legal capacity to consent to contraceptive advice and treatment
• Whether providing such treatment without parental consent infringes parental rights
• Whether a doctor providing such treatment incurs criminal liability

Judgment

The House of Lords allowed the appeal by a majority of 3-2 (Lord Fraser, Lord Scarman and Lord Bridge in the majority; Lord Brandon and Lord Templeman dissenting).

Parental Rights and the Child’s Capacity

Lord Scarman held that parental rights exist to enable parents to perform their duties towards the child and yield to the child’s right to make their own decisions when the child reaches sufficient understanding and intelligence. He stated that the parental right to determine whether a minor child will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to enable them to understand fully what is proposed.

Lord Fraser identified five conditions that should be satisfied before a doctor could lawfully provide contraceptive treatment without parental consent: (1) the girl understands the advice; (2) the doctor cannot persuade her to inform her parents; (3) she is very likely to begin or continue having sexual intercourse; (4) her physical or mental health is likely to suffer without treatment; and (5) her best interests require treatment without parental consent.

Criminal Law Considerations

The majority held that a doctor acting in the bona fide exercise of clinical judgment for the patient’s health would not be guilty of aiding and abetting unlawful sexual intercourse.

The Dissenting Views

Lord Brandon and Lord Templeman dissented, holding that providing contraceptive treatment to girls under 16 was contrary to public policy given that sexual intercourse with such girls was unlawful.

Implications

This case established the concept of ‘Gillick competence’ – that children under 16 can consent to medical treatment if they have sufficient understanding and intelligence to fully comprehend what is proposed. The decision recognised that parental rights are not absolute and diminish as children mature. It affirmed that the welfare of the child is paramount and that rigid age-based rules may not serve the best interests of children. The principles have been applied beyond contraception to other medical treatment decisions involving minors.

Verdict: Appeal allowed by a majority of 3-2. The declaration made by the Court of Appeal that the DHSS guidance was contrary to law was set aside. The guidance was held to be lawful.

Source: Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 (17 October 1985)