An NHS Trust v A, B, C and a Local Authority  EWHC 1445 (Fam) (Mostyn J)
This case in the Family Division concerned a 13 year old girl (A) who was assessed to be over 21 weeks pregnant. The NHS Trust concerned sought urgent declaratory relief that if A lacked capacity to consent to the continuation or termination of the pregnancy then it would be in her best interests to terminate the pregnancy; and that if A had capacity then the court should make a declaration to that effect so that the position was “put beyond doubt and that any later criticisms of the Trust, in taking the steps that they did, [could] be deflected”.
Initial meetings between the specialists and A had revealed her to be uncommunicative and a doubt was raised about her capacity to decide to continue with or to terminate the pregnancy.
The test for capacity in a child under 16 was set out in Gillick v West Norfolk and Wisbech Area Health Authority & Anr  1 FLR 224: “[…] there is no statutory provision which compels me to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment provided that she has sufficient understanding and intelligence to know what they involve”.
The judge relied on the evidence of a consultant psychiatrist, Dr Ganguly (whose oral evidence he ordered to be annexed to the judgment) in concluding that A did have “sufficient understanding and intelligence” (capacity) to decide that she wanted a termination and that her decision was not the product of influence by adults in her family. As Dr Ganguly put it, “she understood the gist of [what was involved in a termination] to the extent that it would be necessary for her to reach a decision.”
Mr Justice Mostyn expressly stated that he was giving judgment in open court “so that anyone who later reads the transcript of this judgment understands that proceedings of this nature are not done in secret by some mysterious court determined to prevent the public from knowing what is being done in its name”. He emphasised the need for transparency in such cases whilst making clear that a reporting restrictions order was appropriate.
Whilst the MCA 2005 does not apply to children aged 16 and under,1 the evidence of the consultant psychiatrist made clear that there was overlap between the Gillick test and with the functional test in the MCA 2005.