Judgment has today been handed down In the matter of X (A Child) (No 2) [2021] EWHC 65 (Fam) an essential read for the law on consent to medical treatment in relation to those under 16 and those aged 16 and 17.

The facts

X suffers from sickle cell syndrome and is a Jehovah’s Witness, as is her mother. On occasion, X is admitted to hospital in a crisis when, in the opinion of her treating clinicians, a top-up blood transfusion becomes an imperative necessity. There were two such crises in June and October 2020 when urgent applications had to be made to the court for declarations permitting top-up blood transfusions - see: Re X [2020] EWHC 1630 (Fam) and Re X [2020] EWHC 3003 (Fam).

As X had presented in crisis twice in a short space of time (the last crisis having been in 2015), and having taken on board the views expressed by the court regarding the unsatisfactory nature of such serious applications being made on an urgent basis, the Trust sought a rolling two-year order (to continue until X turns 18), authorising further top-up blood transfusions in the event of further serious deterioration in X’s condition. The application in October 2020 came before Sir James Munby who, having made the declaration permitting a single top-up blood transfusion to deal with the immediate crisis, adjourned the matter for proper and due consideration to be given to X’s application that Gillick competent minors should be afforded the exclusive right to decide their own medical care in the same way as their peers aged 18 or over.

The court’s analysis

It is clearly established in English law that a capacitous adult has an absolute right to accept or refuse treatment for any reason or no reason at all, even if the consequence of the decision is very serious harm or death. But what is the position of a Gillick competent child or a child with legal capacity?

Sir James Munby noted that it is ‘conventional wisdom’ that ‘… no child (that is, someone who has not reached the age of 18) has such an absolute right, and that even if the child is Gillick competent …. or, having reached the age of 16, comes within the ambit of section 8 of the Family Law Reform Act 1969, the court, in the exercise of its inherent parens patriae or wardship jurisdiction, can in an appropriate case – typically thought of as being a case where the consequence of the child’s decision is likely to be serious risk to health or death – overrule the child’s decision, either, as the case may be, vetoing some procedure to which the child has consented or directing that the child should undergo some procedure to which the child is objecting.’

The ‘conventional wisdom’ is founded In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64 – referred to in the rest of this article as In Re R and In Re W respectively.

The challenge here to the ‘conventional wisdom’ was on grounds that whatever was or was not decided in those two cases, in view of societal and legal developments, including the Human Rights Act 1998 (HRA) and Mental Capacity Act 2005 (MCA), the principles established in those cases no longer reflects the law.

The court was invited to look to the decision of the Supreme Court of Canada in AC and Others -v- Manitoba (Director of Child and Family Services) 2009 SCC 30, [2009] 2 SCR 181, [2009] 5 LRC 557, in which it was argued that the majority held that if a young person under the age of 16 is able to establish that he or she has the requisite capacity, then regardless of the possible medical consequences, that person’s decision is determinative.

In considering the ‘conventional wisdom’ in the context of these developments and the question ‘whether a young woman declared to be Gillick competent and “mature and wise beyond her years”, should be afforded the exclusive right to decide her own medical care in the same way as her peers aged 18 or over….exercising a choice about how she wishes to fight her disease, a choice that is grounded in her human dignity, self-determination, bodily autonomy, and religious conscience’, the court concluded that:

  1. ‘… there is nothing in the Mental Capacity Act 2005 which throws any doubt on the continued validity of In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64, nor indeed anything which even begins to suggest the need for any judicial re-evaluation of what they establish’ despite those cases having been decided before the HRA and MCA. [84]
  2. Preserving the lives of children until adulthood is a legitimate aim; the application of the principles established in In Re R and In Re W does not, of itself, involve any breach of Articles 3, 8, 9 or 14 of the European Convention on Human Rights; and ‘there is nothing in the jurisprudence of the European Convention which throws any doubt on the continued validity of In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64, nor indeed anything which even begins to suggest the need for any judicial re-evaluation of what they establish.’ [157-158]
  3. The decision of the Canadian Supreme Court in AC ‘is not authority for the proposition that the decision of either a Gillick competent child or a child aged 16 or more is always, and without exceptions, determinative in relation to medical treatment. In the final analysis, as I read [Abella J’s] judgment, the court always has the last word.’ [99] and ‘there is nothing in AC (or, indeed, in the other Canadian authorities to which I was taken) which throws any doubt on the continued validity of In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64, nor indeed anything which even begins to suggest the need for any judicial re-evaluation of what they establish.’ [104]

While it was acknowledged that the common law is capable of moving with the times and adjusting to social and legal developments, Sir James Munby did not consider that this entitled the court to reject the law as set out in In Re R and In Re W ‘merely because society’s views have changed, even assuming that they have…’ Ultimately the court held that the change in the law for which X contends, ‘is a matter for Parliament, not the courts’. [162]

So In Re R and In Re W remain good law. But what did those cases establish? In a nutshell, it was established that:

  • A refusal to consent to medical treatment by a Gillick competent minor under the age of 16 is not determinative in all circumstances and can be overridden by the court.
  • This is also the position when the minor has attained the age of 16.
  • 16 – 17 year olds, by virtue of section 8 of the Law Reform Act 1969 are conclusively presumed to be Gillick competent and the test of Gillick competence is bypassed and has no relevance.
  • A refusal by 16 – 17 year olds is also not determinative and can be overridden by the court.

In terms of the appropriate procedure for cases of this kind – ie should this be an application under the inherent jurisdiction or an application for a specific issue order under section 8 of the Children Act 1989 – there can be no doubt, the court said, that an application under the inherent jurisdiction is available in relation to such a child (under the age of 16) and that in relation to a child who has reached the age of 16, the application should be sought solely under the inherent jurisdiction and not under the Children Act 1989. [33]

The paramount consideration in such applications is the welfare of the child. The objective of judges as the ‘judicial reasonable parent’ is ‘… to bring the child to adulthood in such a way that the child is best equipped to deal with what kind of life they want to lead – what kind of person they want to be – and to give effect so far as practicable to their aspirations… to maximise the child’s opportunities in every sphere of life as they enter adulthood’. In doing so, the court is required to have regard to or to consider the child’s wishes and feelings. [21-23]

As regards the two-year rolling order, although accepting that the court has jurisdiction to make this kind of contingent, anticipatory or prospective order, the question for the court was whether such an order should be made. On the facts of this case, the court concluded it should not, as determining whether or not a particular treatment is medically required is highly fact specific and granting such an order to be implemented on the instruction of whomever happens to be X’s treating clinician at the material time would be inappropriate and ‘runs the risk of privileging “medical paternalism” over judicial protection.’ [164, 167-168]

Conclusion

This judgment is a tour de force of domestic, Strasbourg and Canadian jurisprudence and a must-read for all healthcare professionals and those who practise in healthcare law. Sir James Munby in his inimitable style, takes us through a detailed and forensic review of the case law beginning with Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239 and Gillick -v- West Norfolk and Wisbech Area Health Authority [1986] AC 112 and concluding with Bell & Anor -v- The Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274 (Admin).

It sets out in the clearest possible language the case law around consent to/refusal of treatment by those under the age of 16 who are not Gillick competent, those who are under the age of 16 but declared to be Gillick competent and those aged 16 and 17.

X’s application for permission to appeal has been refused. The proposition that the refusal by a Gillick competent child to consent to medical treatment was determinative was of course specifically rejected by the Court of Appeal in In Re R. The take away message is that nothing has changed and the law remains as was: i.e. where a Gillick competent child refuses to consent to medical treatment, the court may, in the exercise of its inherent jurisdiction, override the child’s wishes in the child’s best interests and give its consent to his or her treatment.

A NHS Trust was represented by Ms Claire Watson, Serjeants’ Inn Chambers instructed by Kiran Bhogal of Hill Dickinson LLP.