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Post-Gillick: do courts respect the rights of children in medical decision making?

Post-Gillick: do courts respect the rights of children in medical decision making?

Anisa Rahman Choudhury


Reading time: four minutes

This blog centres around ‘Gillick competency’ – the standard that children must meet in order to be able to make decisions about their health and medical treatment.

It’s important to note that Gillick v West Norfolk AHA [1986] enabled a sixteen-year-old to consent to medical treatment rather than refuse. This is a key distinction from NHS Foundation Trust v P [2014] and Re E (Blood Transfusion) [2021], which this blog will argue is significant to show that these cases take complementary approaches. As Gillick competency is based on a child’s maturity, intelligence and holistic understanding of the situation and consequences of their decision, it has high acclaim from children’s rights advocates. While there’s been appreciation that parental rights shouldn’t be an overriding interest, courts themselves still have inherent jurisdiction to intervene and conduct a welfare assessment for the minor. Not only does this show that courts must naturally focus on age, but this blog will also argue that analysis of the courts isn’t increasingly protective but has consistently been a balancing act. The child’s welfare is the paramountcy principle for courts, aligning with domestic law and the European Convention of Human Rights. 

To begin, NHS Foundation Trust v P [2014] and Re E (Blood Transfusion) [2021] may be seen as more interventionist than what Gillick prescribed. Gillick supporters may argue that subsequent courts have started reading down Gillick competency. However, at the heart of these judgments is the protective role of the courts and the exercise of the inherent jurisdiction to prevent children from making decisions that might negatively impact their health (the children had been refusing potentially life-saving treatment). As the 1986 Gillick case is concerned with consent to contraception treatment only, it could be argued that case law doesn’t allow unfettered exercise of child autonomy when there’s high risk. In Re E (Blood Transfusion) [2021], Sir Andrew Macfarlane justified judicial intervention as “courts cannot simply ignore risk”, even where there’s low likelihood but extreme consequences.  Macfarlane reasonably opposes child self-determination due to the gravity and real threat in medical decision making. Courts still conduct a balancing act of the preservation of life and child autonomy. However, as they’re under a statutory duty to ensure the child’s welfare and best interests is the paramount consideration, it’s not surprising that the judiciary would intervene in life-threatening decisions rather than take a child-centred rights approach.

Nevertheless, it’d be wrong to assume welfare and a child’s decisions are mutually exclusive. The law does acknowledge this as the “ascertainable wishes and feelings of the child (in light of age and understanding)” must be considered in their upbringing. While this isn’t self-determination, children still have significant involvement in medical decision making by focusing on them as an individual rather than introducing a blanket ruling due to their age. Gillick furthers this autonomy by providing powers to consent to medical treatment without parental knowledge if in their best interests. Lord Fraser reasons that a parent’s rights dwindle as the child grows and exercises free will, exemplifying how courts perceive children as autonomous beings and respect their rights.

This does pose the question: are post-Gillick cases retreating from the concept of free will in fear of the consequences? In both NHS Foundation Trust v P [2014] and Re E (Blood Transfusion) [2021], the courts were clear to show they respect a child’s free will. Conceding that courts value autonomy, Professor Brazier argues that it’s clothed in an “ethical imperative rather than a legal principle” to not delve into ‘social controversy’. While the law could be clearer as to the extent of a child’s free will, the assertion that courts don’t view autonomy as a legal principle from external pressure is questionable. This is illustrated in Re E, where it was held that the protective approach and the court’s balancing act “remains good law”, surviving the Human Rights Act 1988 nor is it overridden by the evolution of societal values.

In Re E’s, the child’s religious views as a Jehovah's Witness were heard before deciding they couldn’t refuse potential future treatment. In this case and NHS, the children had the fundamental right to be heard, as stipulated in Article 12 of the United Nations Convention on the Rights of the Child. This states that, where a child is capable of forming their own views, they should express them freely and be given “due weight”. Not only does this align with Gillick’s relational decision making, but it also aligns with the outcomes in Re E and NHS. It’s not a widely encompassing right for children to make medical decisions; ‘due weight’ refers to the cumulative factors in the judge’s evaluation and welfare assessment. Therefore, Re E is justified because to focus simply on the child’s specific religious beliefs would have wider implications on the sanctity of life, the scope of child decision making and haphazardly extend the application of Gillick.