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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7 (17 October 1985) URL: http://www.bailii.org/uk/cases/UKHL/1985/7.html Cite as: [1986] AC 112, [1986] 1 FLR 229, [1985] UKHL 7 |
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JISCBAILII_CASE_FAMILY
JISCBAILII_CASE_SCOT_FAMILYParliamentary
Archives,
HL/PO/JU/18/245
Gillick
(A.P.) (Respondent)
v.
West
Norfolk and Wisbech Area Health Authority and the
Department
of Health and Social Security (Appellants)
(England)
JUDGMENT
Die Jovis 17° Octobris 1985
Upon Report from the Appellate Committee to
whom was
referred the Cause Gillick against West Norfolk and
Wisbech
Area Health Authority and the Department of Health and
Social
Security, That the Committee had heard Counsel on Monday
the
24th, Tuesday the 25th, Wednesday the 26th and Thursday
the
27th days of June, and Monday the 1st, Tuesday the
2nd,
Wednesday the 3rd and Thursday the 4th days of July
last,
upon the Petition and Appeal of the Department of Health
and
Social Security of Alexander Fleming House, Elephant
and
Castle, London, SE1, praying that the matter of the Order
set
forth in the Schedule thereto, namely an Order of Her
Majesty's
Court of Appeal of the 20th day of December 1984,
might be
reviewed before Her Majesty the Queen in Her Court
of Parliament
and that the said Order might be reversed,
varied or altered or
that the Petitioners might have such
other relief in the premises
as to Her Majesty the Queen in
Her Court of Parliament might seem
meet; as also upon the
Case of Victoria Gillick lodged in answer
to the said Appeal,
and due consideration had this day of what was
offered on
either side in this Cause:
It is Ordered and Adjudged, by
the Lords Spiritual and
Temporal in the Court of Parliament of Her
Majesty the Queen
assembled, That the Appeal be Allowed, and the
Declaration
made in the said Order of Her Majesty's Court of
Appeal of
the 20th day of December 1984 against the
Respondent
Department of Health and Social Security complained of
in the
said Appeal be, and the same is hereby, Set Aside: And
it is
further Ordered, That the Costs of the Respondent be
taxed in
accordance with Schedule 2 to the Legal Aid Act 1974; And
it
is also further Ordered, That the Cause be, and the same
is
hereby, remitted back to the Queen's Bench Division of the
High
Court of Justice to do therein as shall be just and
consistent
with this Judgment.
Cler: Parliamentor:
HOUSE OF LORDS
GILLICK
(RESPONDENT)
WEST
NORFOLK AND WISBECH AREA HEALTH AUTHORITY
AND THE DEPARTMENT OF
HEALTH AND SOCIAL SECURITY
(APPELLANTS) (ENGLAND)
Lord Fraser of Tullybelton
Lord
Scarman
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord
Templeman
LORD FRASER OF TULLYBELTON
My Lords,
The main question in this appeal
is whether a doctor can
lawfully prescribe contraception for a
girl under 16 years of age,
without the consent of her parents.
The second appellant, the
Department of Health and Social Security
("the D.H.S.S.")
maintains that a doctor can do so. The
respondent, Mrs. Gillick,
maintains that he cannot. The first
appellant, West Norfolk and
Wisbech Area Health Authority, was not
represented when the
appeal reached this House, but in the Court
of Appeal they were
represented by the same counsel as the
D.H.S.S.
In December 1980, the D.H.S.S.
issued guidance on family
planning services for young people,
which was a revised version of
earlier guidance on the same
subject, and which stated, or implied,
that, at least in certain
cases which were described as
"exceptional," a doctor
could lawfully prescribe contraception for a
girl under 16 without
her parents' consent. Mrs. Gillick, who is
the mother of five
daughters under the age of 16, objected to the
guidance and she
instituted the proceedings which have led to this
appeal, and in
which she claims a declaration against both
appellants that the
advice given in the guidance was unlawful.
She also claims a
further declaration against the first appellant
alone, but it is
of less general importance than the declaration to
which I have
already referred, and I defer consideration of it until
later in
this speech.
It will be convenient to dispose
at once of some preliminary
matters. In the first place, Mrs.
Gillick's husband is not a party
to the present proceedings, but
we were informed that he is in
full agreement with Mrs. Gillick's
contention, and I proceed on
that basis. Secondly, there is no
suggestion that Mrs. Gillick's
relationship with her daughters is
other than normal and happy, nor
is it suggested that there is any
present likelihood of any of the
daughters seeking contraceptive
advice or treatment without the
consent of their mother.
Thirdly, I must mention a
procedural matter. The
declaration which is claimed against the
D.H.S.S., to the effect
that the advice given in the guidance was
unlawful, amounts to an
assertion that the Secretary of State for
Health and Social
Security has acted illegally, in the sense of
ultra vires. The
remedy claimed is in the field of
public law and, since the
decision of your Lordships' House in the
case of O'Reilly v.
Mackman [1983] 2 A.C. 237, it is one
which should normally be
claimed in an application for judicial
review. But the writ and
statement of claim in this action were
issued on 5 August 1982,
three months before the decision in
O'Reilly, which was on 25
November 1982. Accordingly, Mr.
Laws, who appeared for the
D.H.S.S., merely mentioned the
procedural point but he did not
submit that the procedure was out
of order. I have had the
benefit of reading in draft the speech
prepared by my noble and
learned friend Lord Scarman and I agree
with him that, for the
reasons explained by him, Mrs. Gillick was
fully entitled to
proceed in the case by ordinary action.
The advice, the lawfulness of
which is in dispute, is a
revised version of part of a
comprehensive Memorandum of
Guidance on the family planning
service which had been issued to
health authorities in May 1974
under cover of a circular (H.S.C.
(I.S.) 32) from the D.H.S.S. The
Memorandum of Guidance was
divided into a number of sections, one
of which was section G
which was headed "The Young." The
revised section G, which
contains the disputed advice, is as
follows:
"Clinic sessions should be
available for people of all ages,
but it may be helpful to make
separate, less formal
arrangements for young people. The staff
should be
experienced in dealing with young people and their
problems.
"There is widespread concern
about counselling and
treatment for children under 16. Special
care is needed not
to undermine parental responsibility and family
stability.
The Department would therefore hope that in any
case
where a doctor or other professional worker is approached
by
a person under the age of 16 for advice in these
matters, the
doctor, or other professional, will always seek
to persuade the
child to involve the parent or guardian (or
other person in loco
parentis) at the earliest stage of
consultation, and will proceed
from the assumption that it
would be most unusual to provide
advice about contraception
without parental consent.
"It is, however, widely
accepted that consultations
between doctors and patients are
confidential; and the
Department recognises the importance which
doctors and
patients attach to this principle. It is a principle
which
applies also to the other professions concerned. To
abandon
this principle for children under 16 might cause some not
to
seek professional advice at all. They could then be exposed
to
the immediate risks of pregnancy and of sexually-
transmitted
diseases, as well as other long-term physical,
psychological and
emotional consequences which are equally
a threat to stable family
life. This would apply particularly
to young people whose parents
are, for example,
unconcerned, entirely unresponsive, or grossly
disturbed.
Some of these young people are away from their
parents
and in the care of local authorities or
voluntary
organisations standing in loco parentis.
- 2 -
"The Department realises that
in such exceptional
cases the nature of any counselling must be a
matter for
the doctor or other professional worker concerned and
that
the decision whether or not to prescribe contraception
must
be for the clinical judgment of a doctor."
That advice emphasised, more
strongly than section G in its
original form had done, that the
cases in which a doctor could
properly advise a girl under 16
years of age about contraception
without parental consent would be
most unusual. If the advice had
been contained in a legal document
there might well have been
room for argument as to its exact
effect, but, in my view, it is
perfectly clear that it would
convey to any doctor or other person
who read it that the decision
whether or not to prescribe
contraception for a girl under 16 was
in the last resort a matter
for the clinical judgment of a doctor,
even if the girl's parents
had not been informed that she had
consulted the doctor, and even
if they had expressed disapproval
of contraception being prescribed
for her. Mrs. Gillick objected
to the guidance, in its amended
form, and after some
correspondence with the area health
authority, she wrote to the
acting area administrator on 3 March
1981 a letter which included
this paragraph:
"I formally FORBID any
medical staff employed by Norfolk
A.H.A. to give any contraceptive
or abortion advice or
treatment whatsoever to my four daughters
whilst they are
under 16 years without my consent."
Mrs. Gillick's youngest (fifth)
daughter has been born since
that letter was sent. The acting
administrator replied on 9 March
1981 acknowledging the letter and
stating that the A.M.A. held to
the view "that treatment
prescribed by a doctor is a matter for
that doctor's clinical
judgment, taking into account all the factors
of the case."
On 5 August 1982 Mrs. Gillick
began these proceedings
against the area health authority and the
D.H.S.S., in which she
seeks the following declarations (as
amended before the Master):
"(i) A declaration against
the [Area Health Authority] and
the [D.H.S.S.] on a true
construction of the said
notice and in the events which have
happened,
including and in particular the publication and
the
circulation of the said notice, the said notice has
no
authority in law and gives advice which is unlawful
and
wrong, and which adversely affects or which may
adversely affect
the welfare of the plaintiff's said
children, and/or the rights of
the plaintiff as parent
and custodian of the said children, and/or
the ability
of the plaintiff properly and effectively to
discharge
her duties as such parent and custodian;
"(ii) A declaration against
the [Area Health Authority] that
no doctor or other professional
person employed by
the [Area Health Authority] either in the
Family
Planning Service or otherwise may give any
contraceptive
and/or abortion advice and/or treatment
to any child of the
plaintiff below the age of 16
without the prior knowledge and
consent of the said
child's parent or guardian."
- 3 -
Woolf J. [1984] Q.B. 581 refused
to grant the declarations
sought by Mrs. Gillick and dismissed the
action. The Court of
Appeal (Eveleigh, Fox and Parker L.JJ.)
[1985] 2 W.L.R. 413
allowed the appeal and granted the
declarations. Against that
decision the D.H.S.S. now appeals.
The central issue in the appeal is
whether a doctor can
ever, in any circumstances, lawfully give
contraceptive advice or
treatment to a girl under the age of 16
without her parents'
consent. The effect of the Court of Appeal's
judgment is to
answer that question in the negative. The answer is
subject
certainly to one exception, in the case of an order by a
competent
court; this exception was recognised by Parker LJ. in
the Court of
Appeal, [1985] 2 W.L.R. 413, 420H, and it is accepted
in Mrs.
Gillick's printed case. But it is of theoretical rather
than
practical importance, because it would inevitably involve
disclosing
to the parents the doctor's advice to the girl, and
thus would
destroy its confidentiality, and also because the delay
and expense
of obtaining a court order makes frequent use of such
procedure
impracticable. There must, I think, be a second
exception for
cases in which the parents, or the sole surviving
parent, have
deliberately abandoned their parental
responsibilities; in such cases
it would, in my opinion, be wrong
to allow them to emerge from
the shadows solely in order to veto
contraceptive advice or
treatment for their daughter. But these
exceptions do not touch
the principle which is at issue in the
appeal.
The guidance is addressed to
regional health authorities and
other authorities concerned in
administering the National Health
Service ("N.H.S."),
and the appeal therefore only directly concerns
doctors and other
persons working in the N.H.S. I shall refer
throughout to doctors,
to include bevitatis causa other professional
persons working in
the N.H.S.
The first statutory provision for
contraceptive advice and
treatment in the N.H.S. was made by
section 1 of the National
Health Service (Family Planning) Act
1967. That section
empowered local health authorities in England
and Wales, with the
approval of the Minister of Health, to make
arrangements for
giving advice on contraception, for medical
examination of persons
seeking such advice and for the supply of
contraceptive substances
and appliances. There appears to have
been no similar provision
applying to Scotland. The Act of 1967
was repealed by the
National Health Service Reorganisation Act
1973 which, by section
4, replaced the power of local health
authorities to provide such
advice and treatment with a duty on
the Secretary of State to do
so. A similar duty was placed on the
Secretary of State for
Scotland by section 8 of the National
Health Service (Scotland)
Act 1972. The 1973 provision for England
and Wales has now been
superseded by the National Health Service
Act 1977 which by
section 5(l)(b) imposes a duty on the
Secretary of State:
"to arrange, to such extent
as he considers necessary to
meet all reasonable requirements in
England and Wales, for
the giving of advice on contraception, the
medical
examination of persons seeking advice on contraception,
the
treatment of such persons and the supply of
contraceptive
substances and appliances."
- 4 -
These, and other, provisions show
that Parliament regarded
"advice" and "treatment"
on contraception and the supply of
appliances for contraception as
essentially medical matters. So
they are, but they may also raise
moral and social questions on
which many people feel deeply, and
in that respect they differ
from ordinary medical advice and
treatment. None of the
provisions to which I have referred placed
any limit on the age (or
the sex) of the persons to whom such
advice or treatment might
be supplied.
Three strands of argument are
raised by the appeal. These
are:
Whether a girl under the age
of 16 has the legal
capacity to give valid consent to
contraceptive advice
and treatment including medical examination.
Whether giving such advice
and treatment to a girl
under 16 without her parents'
consent infringes the
parents' rights.
Whether a doctor who gives such
advice or treatment
to a girl under 16 without her parents'
consent incurs
criminal liability.
I shall consider these strands in order.
1. The legal
capacity of a girl under 16 to consent
to
contraceptive advice, examination and treatment.
There are some indications in
statutory provisions to which
we were referred that a girl under
16 years of age in England and
Wales does not have the capacity to
give valid consent to
contraceptive advice and treatment. If she
does not have the
capacity, then any physical examination or
touching of her body
without her parents' consent would be an
assault by the examiner.
One of those provisions is section 8 of
the Family Law Reform
Act 1969 which is in the following terms:
"(1) The consent of a minor
who has attained the age of
16 years to any surgical, medical or
dental treatment
which, in the absence of consent, would
constitute a
trespass to his person, shall be as effective as
it
would be if he were of full age; and where a minor
has by
virtue of this section given an effective
consent to any treatment
it shall not be necessary to
obtain any consent for it from his
parent or guardian.
In this section 'surgical,
medical or dental treatment'
includes . . .
Nothing in this section shall
be construed as making
ineffective any consent which
would have been
effective if this section had not been
enacted."
The contention on behalf of Mrs.
Gillick was that subsection
(1) of section 8 shows that, apart
from the subsection, the consent
of a minor to such treatment
would not be effective. But I do
not accept that contention
because subsection (3) leaves open the
- 5 -
question whether consent by a
minor under the age of 16 would
have been effective if the
section had not been enacted. That
question is not answered by
the section, and subsection (1) is, in
my opinion, merely for the
avoidance of doubt.
Another statutory provision which
was referred to in this
connection is the National Health Service
(General Medical and
Pharmaceutical Services) Regulations 1974
(S.I. 1974 No. 160) as
amended by the National Health Service
(General Medical and
Pharmaceutical Services) Amendment
Regulations 1975 (S.I. 1975
No. 719). These regulations prescribe
the mechanism by which the
relationship of doctor and patient
under the National Health
Service is created. Contraceptive
services, along with maternity
medical services, are treated as
somewhat apart from other
medical services in respect that only a
doctor who specially offers
to provide contraceptive or maternity
medical services is obliged
to provide them. See the definition of
"medical card" and
"treatment" in regulation
2(1), regulations 6(l)(a) and 14(2)(a) and
Schedule
1 paragraph 13. But nothing turns on this fact. Two
points in
those regulations have a bearing on the present question
although,
in my opinion, only an indirect bearing. The first is that
by
regulation 14 any "woman" may apply to a doctor to
be
accepted by him for the provision of contraceptive services.
The
word "woman" is not defined so as to exclude a girl
under 16 or
under any other age. But regulation 32 provides as
follows:
"An application to a
doctor for inclusion on his list . . .
may be made, either
-
(a) on behalf of any
person under 16 years of age,
by the mother, or in her
absence, the father, or in
the absence of both
parents the guardian or other
adult person who has the
care of the child; or
(b) on behalf of any
other person who is incapable of
making such an
application by a relative or other
adult person who
has the care of such person; or . .
." (Emphasis added).
The words in paragraph (b)
which I have emphasised are
said, by counsel for Mrs. Gillick, to
imply that a person under 16
years of age is incapable of applying
to a doctor for services and
therefore give some support to the
argument on behalf of Mrs.
Gillick. But I do not regard the
implication as a strong one
because the provision is merely that
an application "may" be made
by the mother or other
parent or guardian and it applies to the
doctor's list for the
provision of all ordinary medical services as
well as to his list
for the provision of contraception services. I
do not believe that
a person aged 15r who may be living away
from home, is
incapable of applying on his own behalf for inclusion
in the list
of a doctor for medical services of an ordinary kind not
connected
with contraception.
Another provision, in a different
branch of medicine, which
is said to carry a similar implication
is contained in the Mental
Health Act 1983 section 131 which
provides for informal admission
of patients to mental hospitals.
It provides by subsection (2) that:
- 6 -
"In the case of a minor who
has attained the age of 16
years and is capable of expressing his
own wishes, any such
arrangements as are mentioned in subsection
(1) above [for
informal admission] may be made, carried out
and
determined notwithstanding any right of custody or
control
vested by law in his parent or guardian."
That provision has only a remote
bearing on the present
question because there is no doubt that a
minor under the age of
16 is in the custody of his or her parents.
The question is
whether such custody necessarily involves the
right to veto
contraceptive advice or treatment being given to the
girl.
Reference was also made to the
Education Act 1944 section
48 which deals with medical inspection
and treatment of pupils at
state school. Subsection (3) of section
48 which imposes on the
Secretary of State a duty to provide for
medical and dental
inspection of pupils was repealed and
superseded by the National
Health Service Reorganisation Act 1973
section 3 and Schedule 5.
The Act of 1973 in turn was replaced by
the National Health
Service Act 1977 section 5(l)(a). Subsection
(4) of Section 48 of
the Education Act 1944 which has not been
repealed imposes a
duty on the Secretary of State to arrange for
encouraging pupils
to take advantage of any medical treatment
provided under Section
43 but it includes a proviso in the
following terms:
"Provided that if the parent
of any pupil gives to the
authority notice that he objects to the
pupil availing himself
of any medical treatment provided under
this section, the
pupil shall not be encouraged ... so to do."
I do not regard that provision as
throwing light on the
present question. It does not prohibit a
child under the stipulated
age from availing himself of medical
treatment or an education
authority from providing it for him. If
the child, without
encouragement from the education authority,
"wishes to avail
himself of medical treatment" the
section imposes no obstacle in
his way. Accordingly, in my
opinion, the proviso gives no support
to the contention from Mrs.
Gillick, but on the contrary points in
the opposite direction.
The statutory provisions to which
I have referred do not
differentiate so far as the capacity of a
minor under 16 is
concerned between contraceptive advice and
treatment and other
forms of medical advice and treatment. It
would, therefore,
appear that, if the inference which Mrs.
Gillick's advisers seek to
draw from the provisions is justified,
a minor under the age of 16
has no capacity to authorise any kind
of medical advice or
treatment or examination of his own body.
That seems to me so
surprising that I cannot accept it in the
absence of clear
provisions to that effect. It seems to me verging
on the absurd
to suggest that a girl or a boy aged 15 could not
effectively
consent, for example, to have a medical examination of
some
trivial injury to his body or even to have a broken arm set.
Of
course the consent of the parents should normally be asked,
but
they may not be immediately available. Provided the
patient,
whether a boy or a girl, is capable of understanding what
is
proposed, and of expressing his or her own wishes, I see no
good
reason for holding that he or she lacks the capacity to
express
- 7 -
them validly and effectively and
to authorise the medical man to
make the examination or give the
treatment which he advises.
After all, a minor under the age of 16
can, within certain limits,
enter into a contract. He or she can
also sue and be sued, and
can give evidence on oath. Moreover, a
girl under 16 can give
sufficiently effective consent to sexual
intercourse to lead to the
legal result that the man involved does
not commit the crime of
rape - see Reg, v. Howard [1966] 1
W.L.R. 13, 15 when Lord
Parker C.3. said:
"... in the case of a girl
under 16 the prosecution, in
order to prove rape, must prove
either that she physically
resisted, or if she did not, that her
understanding and
knowledge were such that she was not in a
position to
decide whether to consent or resist. . . There are
many
girls under 16 who know full well what it is all about
and
can properly consent."
Accordingly, I am not disposed to
hold now, for the first time,
that a girl aged less than 16 lacks
the power to give valid consent
to contraceptive advice or
treatment, merely on account of her
age.
Out of respect for the
comprehensive and fully researched
argument submitted by Mr. Laws
for the D.H.S.S. I should notice
briefly two old Acts to which he
referred, but which do not
appear to me to be helpful. One of
these is the Abduction Act
1557 (4 and 5 Ph. & M. c.3)
for punishing "such as shall take away
maidens that be
inheritors, being within the age of 16 years, or
that marry them,
without consent of their parents." That Act was
evidently
passed for the protection of property rather than for
protection
of the virtue of maidens. It was repealed by the
Offences Against
the Person Act 1823 (9 Geo. 4, c.31). We were
referred to section
20 of the Act of 1823, but that section was
concerned only with
punishing abduction of any unmarried girl
under the age of 16 and
appears to me to have little or no
bearing on the present problem.
On this part of the case
accordingly I conclude that 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. I can
deal with the case
law more conveniently in what follows.
2. The parents'
rights and duties in respect of medical
treatment
of their child. "
The amended guidance expressly
states that the doctor will
proceed from the assumption that it
would be "most unusual" to
provide advice about
contraception without parental consent. It
also refers to certain
cases where difficulties might arise if the
doctor refused to
promise that his advice would remain
confidential and it concludes
that the department realises that "in
such exceptional cases"
the decision whether or not to prescribe
contraception must be for
the clinical judgment of a doctor. Mrs.
Gillick's contention that
the guidance adversely affects her rights
and duties as a parent
must, therefore, involve the assertion of an
absolute right to be
informed of and to veto such advice or
- 8 -
treatment being given to her
daughters even in the "most unusual"
cases which might
arise (subject, no doubt, to the qualifications
applying to the
case of court order or to abandonment of parents'
duties).
It was, I think, accepted both by
Mrs. Gillick and by the
D.H.S.S., and in any event I hold, that
parental rights to control a
child do not exist for the benefit of
the parent. They exist for
the benefit of the child and they are
justified only in so far as
they enable the parent to perform his
duties towards the child,
and towards other children in the
family. If necessary, this
proposition can be supported by
reference to Blackstone
Commentaries, 17th ed. (1830), vol.
1, p. 452, where he wrote
"The power of parents over their
children is derived from . . .
their duty." The proposition
is also consistent with the provisions
of the Guardianship of
Minors Act 1971 section 1 as follows:
"Where in any proceedings before any court . . . -
(a) the custody or upbringing of a
minor; or ... is in
question, the court, in deciding that
question, shall
regard the welfare of the minor as the first
and
paramount consideration, and shall not take into
consideration
whether from any other point of view
the claim of the father, or
any right at common law
possessed by the father, in respect of
such custody,
upbringing, administration or application is
superior to
that of the mother, or the claim of the mother
is
superior to that of the father."
From the parents' right and duty
of custody flows their
right and duty of control of the child, but
the fact that custody is
its origin throws but little light on the
question of the legal
extent of control at any particular age.
Counsel for Mrs. Gillick
placed some reliance on the Children Act
1975. Section 85(1)
provides that in that Act the expression "the
parental rights and
duties" means "all the rights and
duties which by law the mother
and father have in relation to a
legitimate child and his property,"
but the subsection does
not define the extent of the rights and
duties which by law the
mother and father have. Section 86 of
the Act provides:
"In this Act, unless the
context otherwise requires, 'legal
custody' means, as respects a
child, so much of the parental
rights and duties as relate to the
person of the child
(including the place and manner in which his
time is spent)."
In the Court of Appeal Parker L.J.
attached much
importance to that section especially to the words
in brackets.
He considered that the right relating to the place
and manner in
which the child's time is spent included the right,
as he put it,
"completely to control the child" subject
of course always to the
intervention of the court. The learned
Lord Justice went on thus
at [1985] 2 W.L.R. 413, 423A:
"Indeed
there must, it seems to me, be such a right from
birth to a fixed
age unless whenever, short of majority, a
question arises it must
be determined, in relation to a
particular child and a particular
matter, whether he or she
- 9 -
is of sufficient understanding to
make a responsible and
reasonable decision. This alternative
appears to me
singularly unattractive and impracticable,
particularly in the
context of medical treatment."
My Lords, I have, with the utmost
respect reached a
different conclusion from that of the learned
Lord Justice. It is,
in my view, contrary to the ordinary
experience of mankind, at
least in Western Europe in the present
century, to say that a child
or a young person remains in fact
under the complete control of
his parents until he attains the
definite age of majority, now 18 in
the United Kingdom, and that
on attaining that age he suddenly
acquires independence. In
practice most wise parents relax their
control gradually as the
child develops and encourage him or her
to become increasingly
independent. Moreover, the degree of
parental control actually
exercised over a particular child does in
practice vary
considerably according to his understanding and
intelligence and
it would, in my opinion, be unrealistic for the
courts not to
recognise these facts. Social customs change, and
the law ought
to, and does in fact, have regard to such changes
when they are of
major importance. An example of such
recognition is to be found in
the view recently expressed in your
Lordships' House by my noble
and learned friend Lord Brandon of
Oakbrook, with which the other
noble and learned Lords who were
present agreed, in Reg, v. D
[1984] 1 A.C. 778, 806 D. Dealing
with the question of whether the
consent of a child to being taken
away by a stranger would be a
good defence to a charge of
kidnapping, my noble and learned
friend said:
"In the case of a very young
child, it would not have the
understanding or the intelligence to
give its consent, so that
absence of consent would be a necessary
inference from its
age. In the case of an older child, however, it
must, I
think be a question of fact for a jury whether the
child
concerned has sufficient understanding and intelligence
to
give its consent; if, but only if, the jury considers that
a
child has these qualities, it must then go on to
consider
whether it has been proved that the child did not give
its
consent. While the matter will always be for the jury alone
to
decide, I should not expect a jury to find at all
frequently that
a child under 14 had sufficient understanding
and intelligence to
give its consent."
That expression of opinion seems
to me entirely
contradictory of the view expressed by Cockburn
C.J. in Reg, v.
Howes (1860) 1 E. & E. 332, 336-337:
"We repudiate utterly, as
most dangerous, the notion that
any intellectual precocity in an
individual female child can
hasten the period which appears to
have been fixed by
statute for the arrival at the age of
discretion; for that
very precocity, if uncontrolled, might very
probably lead to
her irreparable injury. The legislature has given
us a guide,
which we may safely follow, in pointing out 16 as the
age
up to which the father's right to custody of his female child
- 10 -
is to continue; and short of which
such a child has no
discretion to consent to leaving him."
The question for decision in that
case was different from
that in the present, but the view that the
child's intellectual
ability is irrelevant cannot, in my opinion,
now be accepted. It is
a question of fact for the judge (or jury)
to decide whether a
particular child can give effective consent to
contraceptive
treatment.
In times gone by the father had
almost absolute authority
over his children until they attained
majority. A rather
remarkable example of such authority being
upheld by the court
was the case of In re Agar-Ellis (1883) 24
Ch.D. 317 which was
much relied on by the Court of Appeal. The
father in that case
restricted the communication which his
daughter aged 17 was
allowed to have with her mother, against
whose moral character
nothing was alleged, to an extent that would
be universally-
condemned today as quite unreasonable. The case
has been much
criticised in recent years and, in my opinion, with
good reason. In
Hewer v. Bryant [1970] 1 Q.B. 357,369 Lord
Denning M.R. said:
"I would get rid of the rule
in In re Agar-Ellis and of the
suggested exceptions to it.
That case was decided in the
year 1883. It reflects the attitude
of a Victorian parent
towards his children. He expected
unquestioning obedience
to his commands. If a son disobeyed, his
father would cut
him off with a shilling. If a daughter had an
illegitimate
child, he would turn her out of the house. His power
only
ceased when the child became 21. I decline to accept a
view
so much out of date. The common law can, and
should, keep pace
with the times. It should declare, in
conformity with the recent
Report of the Committee on the
Age of Majority [Cmnd. 3342, 1967],
that the legal right of
a parent to the custody of a child ends at
the 18th
birthday: and even up till then, it is a dwindling right
which
the courts will hesitate to enforce against the wishes of
the
child, and the more so the older he is. It starts with a
right
of control and ends with little more than advice."
I respectfully agree with every
word of that and especially
with the description of the father's
authority as a dwindling right.
In J. v. C. [1970] A.C. 668 Lord Guest and Lord MacDermott
referred to the decision in
Agar-Ellis as an example of the almost
absolute power
asserted by the father over his children before the
Judicature Act
1873 and plainly thought such an assertion was out
of place at the
present time - see Lord MacDermott at pp. 703-
704. In Reg, v.
D. [1984] A.C. 778 Lord Brandon of Oakbrook
cited Agar-Ellis
as an example of the older view of a father's
authority which his
Lordship and the other members of the House
rejected. In my
opinion, the view of absolute paternal authority
continuing until
a child attains majority which was applied in
Agar-Ellis is
so out of line with present day views that it should
no longer be
treated as having any authority. I regard it as a
historical
curiosity. As Fox L.J. pointed out in the Court of
Appeal [1985] 2
W.L.R. 413, 439D, the Agar-Ellis cases (1878) 10
Ch.D. 49;
24 Ch.D. 317 seemed to have been regarded as
somewhat extreme even
in their own day, as they were quickly
followed by the
Guardianship of Infants Act 1886 (49 & 50 Vict.
c.27) which,
by section 5, provided that the court may:
- 11 -
"upon the application of the
mother of any infant [whether
over 16 or not] make such order as
it may think fit
regarding the custody of such infant and the
right of access
thereto of either parent, having regard to the
welfare of
the infant, and to the conduct of the parents, . .
."
(Emphasis added).
Once the rule of the parents'
absolute authority over minor
children is abandoned, the solution
to the problem in this appeal
can no longer be found by referring
to rigid parental rights at any
particular age. The solution
depends upon a judgment of what is
best for the welfare of the
particular child. Nobody. doubts,
certainly I do not doubt, that
in the overwhelming majority of
cases the best judges of a child's
welfare are his or her parents.
Nor do I doubt that any important
medical treatment of a child
under 16 would normally only be
carried out with the parents'
approval. That is why it would and
should be "most unusual" for a
doctor to advise a child
without the knowledge and consent of the
parents on contraceptive
matters. But, as I have already pointed
out, Mrs. Gillick has to
go further if she is to obtain the first
declaration that she
seeks. She has to justify the absolute right
of veto in a parent.
But there may be circumstances in which a
doctor is a better judge
of the medical advice and treatment
which will conduce to a girl's
welfare than her parents. It is
notorious that children of both
sexes are often reluctant to confide
in their parents about sexual
matters, and the D.H.S.S. guidance
under consideration shows that
to abandon the principle of
confidentiality for contraceptive
advice to girls under 16 might
cause some of them not to seek
professional advice at all, with
the consequence of exposing them
to "the immediate risks of
pregnancy and of
sexually-transmitted diseases." No doubt the risk
could be
avoided if the patient were to abstain from sexual
intercourse,
and one of the doctor's responsibilities will be to
decide whether
a particular patient can reasonably be expected to
act upon advice
to abstain. We were told that in a significant
number of cases
such abstinence could not reasonably be expected.
An example is
the case of In re P (A Minor) (1981) 80 L.G.R. 301
in which
Butler-Sloss J. ordered that a girl aged 15 who had been
pregnant
for the second time and who was in the care of a local
authority
should be fitted with a contraceptive appliance because,
as the
learned judge is reported to have said at p. 312:
"I assume that it is
impossible for this local authority to
monitor her sexual
activities, and, therefore, contraception
appears to be the only
alternative."
There may well be other cases
where the doctor feels that
because the girl is under the
influence of her sexual partner or for
some other reason there is
no- realistic prospect of her abstaining
from intercourse. If that
is right it points strongly to the
desirability of the doctor
being entitled in some cases, in the girl's
best interest, to give
her contraceptive advice and treatment if
necessary without the
consent or even the knowledge of her
parents. The only practicable
course is, in my opinion, to entrust
the doctor with a discretion
to act in accordance with his view of
what is best in the
interests of the girl who is his patient. He
should, of course,
always seek to persuade her to tell her parents
that she is
seeking contraceptive advice, and the nature of the
advice that
she receives. At least he should seek to persuade her
- 12 -
to agree to the doctor's informing
the parents. But there may
well be cases, and I think there will
be some cases, where the girl
refuses either to tell the parents
herself or to permit the doctor
to do so and in such cases, the
doctor will, in my opinion, be
justified in proceeding without the
parents' consent or even
knowledge provided he is satisfied on the
following matters:
that the girl (although under
16 years of age) will
understand his advice;
that he cannot persuade her to
inform her parents or
to allow him to inform the
parents that she is
seeking contraceptive advice;
that she is very likely to begin
or to continue having
sexual intercourse with or
without contraceptive
treatment;
(4) that unless she receives
contraceptive advice or
treatment her physical or mental health or
both are
likely to suffer;
(5) that her best interests
require him to give her
contraceptive advice, treatment or both
without the
parental consent.
That result ought not to be
regarded as a licence for
doctors to disregard the wishes of
parents on this matter whenever
they find it convenient to do so.
Any doctor who behaves in such
a way would, in my opinion, be
failing to discharge his professional
responsibilities, and I
would expect him to be disciplined by his
own professional body
accordingly. The medical profession have in
modern times come to
be entrusted with very wide discretionary
powers going beyond the
strict limits of clinical judgment and, in
my opinion, there is
nothing strange about entrusting them with
this further
responsibility which they alone are in a position to
discharge
satisfactorily.
3. Is a doctor who gives
contraceptive advice or treatment to
a girl under 16 without her
parents' consent likely to incur
criminal liability?
The submission was made to Woolf
J. on behalf of Mrs.
Gillick that a doctor who provided
contraceptive advice and
treatment to a girl under 16 without her
parents' authority would
be committing an offence under section 28
of the Sexual Offences
Act 1956 by aiding and abetting the
commission of unlawful sexual
intercourse. When the case reached
the Court of Appeal counsel
on both sides conceded that whether a
doctor who followed the
guidelines would be committing an offence
or not would depend on
the circumstances. It would depend upon the
doctor's intentions;
this appeal is concerned with doctors who
honestly intend to act in
the best interests of the girl, and I
think it is unlikely that a
doctor who gives contraceptive advice
or treatment with that
intention would commit an offence under
section 28. It must be
remembered that a girl under 16 who has
sexual intercourse does
not thereby commit an offence herself,
although her partner does -
see the Sexual Offences Act 1956
sections 5 and 6. In any event,
even if the doctor would be
committing an offence, the fact that
- 13 -
he had acted with the parents'
consent would not exculpate him as
Woolf 3. pointed out [1984]
Q.B. 581, 595G. Accordingly, I regard
this contention as
irrelevant to the question that we have to
answer in this appeal.
Parker L.J. in the Court of Appeal dealt
at some length with the
provisions of criminal law intended to
protect girls under the age
of 16 from being seduced, and perhaps
also to protect them from
their own weakness. The learned Lord
Justice at [1985] 2 W.L.R.
413, 435B expressed his conclusion on
this part of the case as
follows:
"It appears to me that it is
wholly incongruous, when the
act of intercourse is criminal, when
permitting it to take
place on one's premises is criminal and
when, if the girl
were under 13, failing to report an act of
intercourse to the
police would up to 1967 have been criminal,
that either the
. department [or] the area health authority should
provide
facilities which would enable girls under 16 the more
readily
to commit such acts. It seems to me equally incongruous
to
assert that doctors have the right to accept the young,
down,
apparently to any age, as patients, and to provide
them with
contraceptive advice and treatment without
reference to their
parents and even against their known
wishes."
My Lords, the first of those two
sentences is directed to
the question, which is not in issue in
this appeal, of whether
contraceptive facilities should be
available at ail under the
National Health Service for girls under
16. I have already
explained my reasons for thinking that the
legislation does not
limit the duty of providing such facilities
to women of 16 or
more. The second sentence, which does bear
directly on the
question in the appeal, does not appear to me to
follow necessarily
from the first and with respect I cannot agree
with it. If the
doctor complies with the first of the conditions
which I have
specified, that is to say if he satisfies himself
that the girl can
understand his advice there will be no question
of his giving
contraceptive advice to very young girls.
For those reasons I do not
consider that the guidance
interferes with the parents' rights.
The Second Declaration
The second declaration is directed
only against the area
health authority. Its practical importance
would be minimal
because doctors are not "employed" by
the area health authority in
the family planning service and, if
they were, the declaration
could easily be avoided by the girl
going to a doctor in a different
area. The Court of Appeal made
the declaration sought, and the
authority has not appealed against
its decision. I am, therefore,
of opinion that we should not
reverse the decision of the Court of
Appeal on this part of the
case. But it is clearly inconsistent with
the views I have
expressed on the first declaration, and I agree
with Lord Scarman
that it should be overruled.
I would allow the appeal against
the first declaration
granted by the Court of Appeal, and I would
overrule the second
declaration as being erroneous.
- 14 -
LORD SCARMAN
My Lords,
I have had the advantage of
reading in draft the speech
delivered by my noble and learned
friend, Lord Fraser of
Tullybelton. Agreeing with it, I shall
endeavour in delivering my
opinion to avoid repetition. The
importance of the case is,
however, such that I believe it
necessary, even at the cost of
some repetition, to deliver my
opinion in my own words. The case
is the beginning, not the
conclusion, of a legal development in a
field glimpsed by one or
two judges in recent times (notably
Butler-Sloss 3. In re P (A
Minor) (1981) 80 L.G.R. 301) but not yet
fully explored. Mrs.
Gillick, even though she may lose the appeal,
has performed a
notable public service in directing judicial
attention to the
problems arising from the interaction of parental
right and a
doctor's duty in a field of medicine unknown to our
fathers but of
immense consequence to our society. The
contraceptive pill has
introduced a new independence, and offers
new options, for women:
but has it in the process undermined
parental right and duty? In
my judgment, the answer is "no", even
though parental
right may not be as extensive or as long lasting as
she believes
it to be.
Victoria Gillick, mother of five
daughters under the age of
16, challenges the lawfulness of a
memorandum of guidance issued
by the Department of Health and
Social Security which she says
encourages and in certain
circumstances recommends health
authorities, doctors, and others
concerned in operating the
department's family planning services
to provide contraceptive
advice and treatment to girls under the
age of 16 without the
knowledge or consent of a parent. Mrs.
Gillick is a wife and
mother living in a united family with her
husband and their
children. The husband supports the action being
taken, as they
both see it, to protect their daughters. No further
need be said
of their family situation in deciding this appeal.
Mrs. Gillick began her proceedings
by the issue of a writ
against two defendants, the health
authority for the area in which
she lives and the department. She
claims in an ordinary civil
action declaratory relief against both
defendants that the guidance
is unlawful, and against the area
health authority alone a
declaration that no doctor or other
person in its employ may give
contraception or abortion advice to
Mrs. Gillick's children under
the age of 16 without her prior
knowledge and consent. The area
health authority has taken no part
in the litigation, but the
department has fought the case
strenuously. The appeal to the
House is that of the department:
the health authority has not
appealed and is not represented.
The written case submitted on Mrs.
Gillick's behalf to the
House formulates three propositions of
law, any one of which, if
made good, would suffice to entitle her
to relief. They are as
follows:
"(i) parental rights should
be protected from any invasion
or interference neither authorised
by a competent
court nor expressly authorised by statute:
[the
parental rights case]
- 15 -
"(ii) the provision of
contraceptive treatment to girls
under the age of 16 either
constitutes criminal
conduct in itself or is so closely analogous
thereto as
to be contrary to public policy: [the criminal
law
case]
"(iii) a girl below the age
of 16 is not capable in law of
giving a valid consent to medical
treatment and in
the particular context of this case to
contraceptive or
abortion treatment." [the age of consent
point].
Before, however, considering these
propositions, it is necessary to
clear out of the way certain
procedural questions, which, though
not urged upon our attention,
do call for a brief consideration.
Procedure
Three procedural questions have
emerged in the course of
the litigation. First, Mr. Simon Brown,
who before his elevation
to the bench had the conduct of the case
as counsel for the
department, raised at the trial the question as
to the propriety of
the civil court granting a declaration in a
case which involved the
criminal law. The judge saw no reason why
he should be inhibited
on this ground from dealing with the issues
in the action; and I
agree with him. It was not contended that the
issue of the
guidance was itself a crime: the case against the
department was
simply that the guidance, if followed, would result
in unlawful acts
and that the department by issuing it was
exercising a statutory
discretion in a wholly unreasonable way;
i.e. the classical
"Wednesbury" case for judicial
review: Associated Provincial
Picture Houses Ltd, v. Wednesbury
Corporation [1948] 1 K.B. 223.
The second question is as to the
propriety of proceeding in
this case by ordinary civil action.
Should not Mrs. Gillick have
proceeded by way of judicial review
under R.S.C. Ord. 53? No
point was taken at trial or in the Court
of Appeal against Mrs.
Gillick that she should have proceeded not
by issuing a writ, but
by applying for judicial review. Woolf J.
did, however, mention
the matter only to hold that there was a
relevant precedent for
proceeding by writ in this House's decision
in Royal College of
Nursing of the United Kingdom v. Department
of Health and Social
Security [1981] A.C. 800. "
The point having been brought to
the attention of the House
I think it desirable to consider it if
only because of the later
decision of the House in O'Reilly v.
Mackman [1983] 2 A.C. 237,
where Lord Diplock, with whose
opinion their other Lordships
agreed, laid down a rule in these
terms at p. 285D:
"Now that those disadvantages
[i.e. those previously
associated with prerogative order
procedure] to applicants
have been removed and all remedies for
infringements of
rights protected by public law can be obtained
upon an
application for judicial review, as can also remedies
for
infringements of rights under private law if
such
infringements should also be involved, it would in my view
as
a general rule [emphasis supplied] be contrary to public
policy,
and as such an abuse of the process of the court, to
- 16 -
permit a person seeking to
establish that a decision of a
public authority infringed rights
to which he was entitled to
protection under public law to proceed
by way of an
ordinary action and by this means to evade the
provisions of
Order 53 for the protection of such authorities."
If there be in the present case an
abuse of the process of
the court, the House cannot overlook it,
even if the parties are
prepared to do so, and even though the
writ in this case was
issued before the decision of the House in
O'Reilly's case [1983] 2
A.C. 237.
Mrs. Gillick's action is
essentially to protect what she
alleges to be her rights as a
parent under private law. Although
she is proceeding against two
public authorities and invokes the
criminal law and public policy
in support of her case, she claims
as a parent whose right of
custody and guardianship in respect of
her children under the age
of 16 is (she says) threatened by the
guidance given by the
department to area health authorities,
doctors, and others
concerned in the provision by the department
of a family health
service. This is a very different case from
O'Reilly [1983] 2 A.C. 237 where it could not be contended that
there was any
infringement or threat of infringment of any right
derived from
private law. For the appellants in O'Reilly's case
were convicted
prisoners faced with forfeiture of remission, and
they were held
to have not a right to remission of their prison
sentences but
merely "a legitimate expectation" which could, if
the
necessary facts were established, entitle them "to a
remedy in
public law." They had, therefore, no private right
in the matter,
and could rely only on the "public law"
doctrine of legitimate
expectation.
It is unnecessary to embark upon
an analysis of the newly
fledged distinction in English law
between public and private law,
for I do not see Mrs. Gillick's
claim as falling under the embargo
imposed by O'Reilly's case
[1983] 2 A.C. 237. If I should be
wrong in this view, I would
nevertheless think that the private law
content of her claim was
so great as to make her case an
exception to the general rule.
Lord Diplock at p. 285F recognised
that the general rule which he
was laying down admitted of
exceptions including cases:
"where the invalidity of [the
public authority's] decision
arises as a collateral issue in a
claim for infringement of a
right of the plaintiff arising under
private law, or where
none of the parties objects to the adoption
of the procedure
by writ or originating summons."
Both these exceptions can be said
to apply in the present case.
Like Lord Diplock, I think that
procedural problems in the field of
public law must be left to be
decided on a case to case basis.
Mrs. Gillick was, in my opinion,
fully entitled to proceed by
ordinary action, even though she
could also have proceeded by way
of judicial review.
The third and final procedural
question is a mere
technicality: as such, it creates - no lawyer
would be surprised -
more trouble than the other two. If the House
should allow the
department's appeal against the guidance
declaration what is to be
- 17 -
done about the other declaration
granted exclusively against the
area health authority? As a
matter of common sense, if Mrs.
Gillick fails to establish that
the department's guidance is unlawful
she cannot upon the evidence
in this case establish her entitlement
to the other declaration
against the health authority. The Court
of Appeal treated the
second declaration as consequential upon the
guidance declaration,
which upon the evidence they were plainly,
right to do. But there
is a difficulty in allowing an appeal where
there is no appellant
and no appeal. Fortunately in this case
there is no issue between
the parties as to costs. If the
department succeeds, it does not
ask for costs against Mrs. Gillick
here or below: and the area
health authority has incurred no
costs. Two courses are open to
the House: one would be to
ignore the technicalities, allow the
appeal (if that be the view of
the House), and set aside both
declarations: the other, which is
strictly correct, would be to
allow the department's appeal and to
declare that the reasoning
was also applicable to the Court of
Appeal's decision in favour of
the health authority which must,
therefore, be held to be
overruled. If the second course should be
taken, the only order to
be made by the House would be to allow
the department's appeal and
set aside the "guidance" declaration.
I favour the
second course.
The Department's Guidance
In 1974 the department assumed
statutory responsibility for
the provision of family planning
services on a national basis. This
involved a reorganisation which
included a transfer of services
from the agencies previously
concerned to area health authorities.
In the course of the
reorganisation which took some two years to
complete the
department issued guidance as to the duties and
responsibilities
of doctors and others concerned with the provision
of such
services. It was empowered so to do by its assumption,
pursuant to
statute, of responsibility for the provision of such
services. In
May 1974 the department circulated a memorandum of
guidance
HN(80)46: it included a section (section G.) as to the
provision
of services to young people. The text of section G.
aroused some
public concern, and in December 1980 a revised
section G. was
issued to replace the earlier text. It is this
revision which lies
at the heart of the case, being the subject of
Mrs. Gillick's
challenge. I set it out in full:
"REVISED SECTION G - THE YOUNG
"Clinic sessions should be
available for people of all ages,
but it may be helpful to make
separate, less formal
arrangements for young people. The staff
should be
experienced in dealing with young people and their
problems.
"There is widespread concern
about counselling and
treatment for children under 16. Special
care is needed not
to undermine parental responsibility and family
stability.
The Department would therefore hope that in any
case
where a doctor or other professional worker is approached
by
a person under the age of 16 for advice in these
matters, the
doctor, or other professional, will always seek
to persuade the
child to involve the parent or guardian (or
other person in loco
parentis) at the earliest stage of
consultation, and will proceed
from the assumption that it
- 18 -
would be most unusual to provide
advice about contraception
without parental consent.
"It is, however, widely
accepted that consultations between
doctors and patients are
confidential; and the Department
recognises the importance which
doctors and patients attach
to this principle. It is a principle
which applies also to the
other professions concerned. To abandon
this principle for
children under 16 might cause some not to seek
professional
advice at all. They could then be exposed to the
immediate
risks of pregnancy and of sexually-transmitted diseases,
as
well as other long-term physical, psychological and
emotional
consequences which are equally a threat to stable
family
life. This would apply particularly to young people
whose
parents are, for example, unconcerned, entirely
unresponsive,
or grossly disturbed. Some of these young people are
away
from their parents and in the care of local authorities
or
voluntary organisations standing in loco parentis.
"The Department realises that
in such exceptional cases the
nature of any counselling must be a
matter for the doctor
or other professional worker concerned and
that the decision
whether or not to prescribe contraception must
be for the
clinical judgment of a doctor."
The first question in the appeal
is simply: what is the true
meaning of this text? Does it, or does
it not, permit doctors
concerned in the provision of a statutory
service to prescribe
contraceptive treatment for a girl under 16
without the knowledge
and consent of her parents? And, if it does,
in what
circumstances?
There can be no doubt that it does
permit doctors to
prescribe in certain circumstances contraception
for girls under 16
without the knowledge and consent of a parent
or guardian. (In
this opinion I shall use the term "parent"
to include "guardian").
The text is not, however, clear
as to the circumstances (variously
described as "unusual"
and "exceptional") which justify a doctor in
so doing.
The House must be careful not to construe the guidance
as though
it was a statute or even to analyse it in the way
appropriate to a
judgment. The question to be asked is: what
would a doctor
understand to be the guidance offered to him, if
he should be
faced with a girl under 16 seeking contraceptive
treatment without
the knowledge or consent of her parents?
He would know that it was his duty
to seek to persuade the
girl to let him bring into consultation
her parents (or one of
them). If she refused, he (or the
counsellor to whom the girl had
gone) must ask himself whether the
case was one of those
exceptional cases in which the guidance
permitted a doctor to
prescribe contraception without the
knowledge or consent of a
parent (provided always that in the
exercise of his clinical
judgment he thought this course to be in
the true interest of his
patient). In my judgment the guidance
clearly implies that in
exceptional cases the parental right to
make decisions as to the
care of their children, which derives
from their right of custody,
can lawfully be overridden, and that
in such cases the doctor may
without parental consultation or
consent prescribe contraceptive
treatment in the exercise of his
clinical judgment. And the
- 19 -
guidance reminds the doctor that
in such cases he owes the duty
of confidentiality to his patient,
by which is meant that the doctor
would be in breach of his duty
to her if he did communicate with
her parents.
The guidance leaves two areas of
the doctor's responsibility
in some obscurity. Though it provides
illustrations of exceptional
cases, it offers no definition. And
it gives no clue as to what is
meant by "clinical judgment"
other than that it must at least
include the professional judgment
of a doctor as to what is the
medically appropriate advice or
treatment to be offered to his
patient. .
This lack of definition does not,
in my judgment, assist Mrs.
Gillick. If, contrary to her
submission, the law recognises that
exceptional cases can arise in
which it is lawful for a doctor to
prescribe contraceptive
treatment for a girl under 16 without the
knowledge and consent of
a parent, the guidance would be within
the law notwithstanding its
lack of precision, unless its vagueness
created so obscure a
darkness that it could reasonably be
understood by a doctor as
authorising him to prescribe without the
parent's consent whenever
he should think fit.
I do not find upon a fair reading
of the guidance anything
to obscure or confuse its basic message
that a doctor is only in
exceptional circumstances to prescribe
contraception for a young
person under the age of 16 without the
knowledge and consent of
a parent. No reasonable person could read
it as meaning that the
doctor's discretion could ordinarily
override parental right.
Illustrations are given in the text of
exceptional cases in which
the doctor may take the "most
unusual" course of not consulting
the parent. Only in
exceptional cases does the guidance
contemplate him exercising his
clinical judgment without the
parent's knowledge and consent.
Lastly, there really can be no
compulsion in law upon a government
department to spell out to a
doctor what is meant by "clinical
judgment."
The Question in the Appeal
It is only if the guidance permits
or encourages unlawful
conduct in the provision of contraceptive
services that it can be
set aside as being the exercise of a
statutory discretionary power
in an unreasonable way.
The question, therefore, for the
House is - can a doctor in
any circumstances lawfully prescribe
contraception for a girl under
16 without the knowledge and
consent of a parent?
Before discussing the question, I
put out of the way the two
exceptions which I understand both
parties to the appeal accept?
namely the order of a competent
court, and emergency. Nobody
disputes the existence of the court
exception, nor does the other
situation call for more than a brief
mention.
If, as is clear in the light of
section 5 of the National
Health Service Act 1977 (re-enacting
earlier legislation) and
section 41 of the National Health Service
(Scotland) Act 1978,
contraceptive medical treatment is recognised
as a legitimate and
- 20 -
beneficial treatment in cases in
which it is medically indicated, it
must be an available option
for the doctor in an emergency where
treatment is urgently needed
and the consent of the patient or his
parent cannot be obtained
either in time or at all. And the case
of a teenage girl abandoned
by her parents and not yet received
into the care of a local
authority or placed under the protection
of a responsible adult in
loco parentis can be seen to be a true
emergency. Both Mrs.
Gillick, as I understand her case, and the
department accept these
exceptions to the general rule that a
parent must be consulted and
give consent and I say no more than
that it would be unthinkable
for the law not to recognise them.
Parental Right and the Age of Consent
Mrs. Gillick relies on both the
statute law and the case law
to establish her proposition that
parental consent is in all other
circumstances necessary. The only
statutory provision directly in
point is section 8 of the Family
Law Reform Act 1969.
Subsection (1) of the section provides that
the consent of a minor
who has attained the age of 16 to any
surgical, mental, or dental
treatment which in the absence of
consent would constitute a
trespass to his person shall be as
effective as if he were of full
age and that the consent of his
parent or guardian need not be
obtained. Subsection (3) of the
section provides that:
"Nothing in this section
shall be construed as making
ineffective any consent which would
have been effective if
this section had not been enacted."
I cannot accept the submission
made on Mrs. Gillick's behalf that
subsection (1) necessarily
implies that prior to its enactment the
consent of a minor to
medical treatment could not be effective in
law. Subsection (3)
leaves open the question whether the consent
of a minor under 16
could be an effective consent. Like my noble
and learned friend,
Lord Fraser of Tullybelton, I read the section
as clarifying the
law without conveying any indication as to what
the law was before
it was enacted. So far as minors under 16 are
concerned, the law
today is as it was before the enactment of the
section.
Nor do I find in the provisions of
the statute law to which
Parker L.J. refers in his judgment in the
Court of Appeal [1985] 2
W.L.R. 413 any encouragement, let alone
any compelling reason,
for holding that Parliament has accepted
that a child under 16
cannot consent to medical treatment. I
respectfully agree with
the reasoning and conclusion of my noble
and learned friend, Lord
Fraser of Tullybelton, on this point.
The law has, therefore, to be
found by a search in the
judge-made law for the true principle.
The legal difficulty is that
in our search we find ourselves in a
field of medical practice
where parental right and a doctor's duty
may point us in different
directions. This is not surprising.
Three features have emerged in
today's society which were not
known to our predecessors:- (1)
contraception as a subject for
medical advice and treatment; (2)
the increasing independence of
young people; and (3) the changed
status of women. In times past
contraception was rarely a matter
for the doctor: but with the
development of the contraceptive pill
- 21 -
for women it has become part and
parcel of every-day medical
practice, as is made clear by the
Department's Handbook of
Contraceptive Practice (1984
revision), particularly para. 1.2.
Family planning services are
now available under statutory powers
to all without any express
limitation as to age or marital status.
Young people, once they
have attained the age of 16, are capable
of consenting to
contraceptive treatment, since it is medical
treatment: and,
however extensive be parental right in the care
and upbringing of
children, it cannot prevail so as to nullify the
16-year's old
capacity to consent which is now conferred by
statute.
Furthermore, women have obtained by the availability of
the pill a
choice of life-style with a degree of independence and
of
opportunity undreamed of until this generation and greater, I
would
add, than any law of equal opportunity could by itself
effect.
The law ignores these developments
at its peril. The
House's task, therefore, as the supreme court in
a legal system
largely based on rules of law evolved over the
years by the
judicial process is to search the overfull and
cluttered shelves of
the law reports for a principle, or set of
principles recognised by
the judges over the years but stripped of
the detail which,
however appropriate in their day, would, if
applied today, lay the
judges open to a justified criticism for
failing to keep the law
abreast of the society in which they live
and work.
It is, of course, a judicial
common place to proclaim the
adaptability and flexibility of the
judge-made common law. But
this is more frequently proclaimed than
acted upon. The mark of
the great judge from Coke through
Mansfield to our day has been
the capacity and the will to search
out principle, to discard the
detail appropriate (perhaps) to
earlier times, and to apply principle
in such a way as to satisfy
the needs of their own time. If
judge-made law is to survive as a
living and relevant body of law,
we must make the effort, however
inadequately, to follow the lead
of the great masters of the
judicial art,
In this appeal, therefore, there
is much in the earlier case
law which the House must discard -
almost everything I would say
but its principle. For example, the
horrendous Agar-Ellis decisions
10 Ch.D. 49; 24 Ch.D. 317
of the late 19th century asserting the
power of the father over
his child were rightly remaindered to the
history books by the
Court of Appeal in Hewer v. Bryant [1970] 1
Q.B. 357, an
important case to which I shall return later. Yet the
decisions of
earlier generations may well afford clues to the true
principle of
the law: e.g. Reg, v. Howes (1860) 3 E. & E. 332,
336,
which I also later quote. It is the duty of this House to look
at,
through, and past the decisions of earlier generations so that it
may
identify the principle which lies behind them. Even Lord
Eldon,
(no legal revolutionary), once remarked, when invited to
study
precedent, (the strength of which he never under-rated):
"All law ought to stand upon
principle; and unless decision
has removed out of the way all
argument and all principle,
so as to make it impossible to apply
them to the case
before you, you must find out what is the
principle upon
which it must be decided." 1 Bligh 486 quoted
by Lord
Campbell, Lives of the Lord Chancellors, 4th ed.
(1857), vol.
10, chap. 213, p. 244.
-22 -
Approaching the earlier law in
this way, one finds plenty of
indications as to the principles
governing the law's approach to
parental right and the child's
right to make his or her own
decision. Parental rights clearly do
exist, and they do not wholly
disappear until the age of majority.
Parental rights relate to both
the person and the property of the
child - custody, care, and
control of the person and guardianship
of the property of the
child. But the common law has never treated
such rights as
sovereign or beyond review and control. Nor has our
law ever
treated the child as other than a person with capacities
and rights
recognised by law. The principle of the law, as I shall
endeavour
to show, is that parental rights are derived from
parental duty and
exist only so long as they are needed for the
protection of the
person and property of the child. The principle
has been subjected
to certain age limits set by statute for
certain purposes: and in
some cases the courts have declared an
age of discretion at which
a child acquires before the age of
majority the right to make his
(or her) own decision. But these
limitations in no way undermine
the principle of the law, and
should not be allowed to obscure it.
Let me make good, quite shortly,
the proposition of
principle.
First, the guardianship
legislation. Section 5 of the
Guardianship of Infants Act
1886 began the process which is now
complete of establishing the
equal rights of mother and father. In
doing so the legislation,
which is currently embodied in section 1
of the Guardianship of
Minors Act 1971, took over from the
Chancery courts a rule which
they had long followed (it was
certainly applied by Lord Eldon,
during his quarter of a century as
Lord Chancellor, as Parker L.3.
in this case, quoting Heilbron 3. at
[1985] 2 W.L.R. 413, 424,
reminds us) that when a court has
before it a question as to the
care and upbringing of a child it
must treat the welfare of the
child as the paramount consideration
in determining the order to
be made. There is here a principle
which limits and governs the
exercise of parental rights of
custody, care, and control. It is a
principle perfectly consistent
with the law's recognition of the
parent as the natural guardian of
the child; but it is also a
warning that parental right must be
exercised in accordance with
the welfare principle and can be
challenged, even overridden, if
it be not.
Secondly, there is the common
law's understanding of the
nature of parental right. We are not
concerned in this appeal to
catalogue all that is contained in
what Sachs L.J. has felicitously
described as the "bundle of
rights" (Hewer v. Bryant, [1970] Q.B.
357, 373) which
together constitute the rights of custody, care,
and control. It
is abundantly plain that the law recognises that
there is a right
and a duty of parents to determine whether or not
to seek medical
advice in respect of their child, and, having
received advice, to
give or withhold consent to medical treatment.
The question in the
appeal is as to the extent, and duration of the
right and the
circumstances in which outside the two admitted
exceptions to
which I have earlier referred it can be overridden by
the exercise
of medical judgment.
As Parker and Fox L.JJ. noted in
the Court of Appeal, the
modern statute law recognises the
existence of parental right:
e.g. sections 85 and 86 Children Act
1975 and sections 2. 3, and 4
- 23 -
Child Care Act 1980. It is derived
from parental duty. A most
illuminating discussion of parental
right is to be found in
Blackstone's Commentaries, 17th ed.
(1830), vol. 1 chapters 16 and
17. He analyses the duty of the
parent as the "maintenance . . .
protection, and . . .
education" of the child: p. 446. He declares
that the power
of parents over their children is derived from their
duty and
exists "to enable the parent more effectually to perform
his
duty, and partly as a recompense for his care and trouble in
the
faithful discharge of it:" op.cit. p. 452. In chapter 17
he
discusses the relation of guardian and ward. It is, he points
out, a
relation "derived out of [the relation of parent and
child]: the
guardian being only a temporary parent, that is, for
so long a time
as the ward is an infant, or under age":
op.cit. chap. 17, p. 460.
A little later in the same chapter he
again emphasises that the
power and reciprocal duty of a guardian
and ward are the same,
pro tempore, as that of a father and child
and adds that the
guardian, when the ward comes of age, (as also
the father who
becomes guardian "at common law" if an
estate be left to his
child) must account to the child for all
that he has transacted on
his behalf: pp. 462-463. He then embarks
upon a discussion of the
different ages at which for different
purposes a child comes of
sufficient age to make his own decision;
and he cites examples,
viz. a boy might at 12 years old take the
oath of allegiance; at
14 he might consent to marriage or choose
his guardian "and, if
his discretion be actually proved, may
make his testament of his
personal estate;" at 17 he could be
an executor - all these rights
and responsibilities being capable
of his acquiring before reaching
the age of majority at 21:
op.cit. p. 463.
The two chapters provide a
valuable insight into the
principle and flexibility of the common
law. The principle is that
parental right or power of control of
the person and property of
his child exists primarily to enable
the parent to discharge his
duty of maintenance, protection, and
education until he reaches
such an age as to be able to look after
himself and make his own
decisions. Blackstone does suggest that
there was a further
justification for parental right, viz. as a
recompense for the
faithful discharge of parental duty: but the
right of the father to
the exclusion of the mother and the reward
element as one of the
reasons for the existence of the right have
been swept away by
the Guardianship of Minors legislation to which
I have already
referred. He also accepts that by statute and by
case law varying
ages of discretion have been fixed for various
purposes. But it is
clear that this was done to achieve certainty
where it was
considered necessary and in no way limits the
principle that
parental right endures only so long as it is needed
for the
protection of the child.
Although statute has intervened in
respect of a child's
capacity to consent to medical treatment from
the age of 16
onwards, neither statute nor the case law has ruled
on the extent
and duration of parental right in respect of
children under the age
of 16. More specifically, there is no rule
yet applied to
contraceptive treatment, which has special problems
of its own and
is a late-comer in medical practice. It is open,
therefore, to the
House to formulate a rule. The Court of Appeal
favoured a fixed
age limit of 16, basing themselves on a view of
the statute law
which I do not share and upon their view of the
effect of the
older case law which for the reasons already given I
cannot
- 24-
accept. They sought to justify the
limit by the public interest in
the law being certain. Certainty
is always an advantage in the
law, and in some branches of the law
it is a necessity. But it
brings with it an inflexibility and a
rigidity which in some
branches of the law can obstruct justice,
impede the law's
development, and stamp upon the law the mark of
obsolescence
where what is needed is the capacity for development.
The law
relating to parent and child is concerned with the
problems of the
growth and maturity of the human personality. If
the law should
impose upon the process of "growing up"
fixed limits where nature
knows only a continuous process, the
price would be artificiality
and a lack of realism in an area
where the law must be sensitive
to human development and social
change. If certainty be thought
desirable, it is better that the
rigid demarcations necessary to
achieve it should be laid down by
legislation after a full
consideration of all the relevant factors
than by the courts
confined as they are by the forensic process to
the evidence
adduced by the parties and to whatever may properly
fall within
the judicial notice of judges. Unless and until
Parliament should
think fit to intervene, the courts should
establish a principle
flexible enough to enable justice to be
achieved by its application
to the particular circumstances proved
by the evidence placed
before them.
The underlying principle of the
law was exposed by
Blackstone and can be seen to have been
acknowledged in the case
law. It is that parental right yields to
the child's right to make
his own decisions when he reaches a
sufficient understanding and
intelligence to be capable of making
up his own mind on the
matter requiring decision. Lord Denning
M.R. captured the spirit
and principle of the law when he said in
Hewer v. Bryant [1970] 1
Q.B. 357, 369:
"I would get rid of the rule
in In re Agar-Ellis, 24 Ch.D.
317 and of the suggested
exceptions to it. That case was
decided in the year 1883. It
reflects the attitude of a
Victorian parent towards his children.
He expected
unquestioning obedience to his commands. If a
son
disobeyed, his father would cut him off with a shilling. If
a
daughter had an illegitimate child, he would turn her out of
the
house. His power only ceased when the child became
21. I decline
to accept a view so much out of date. The
common law can, and
should, keep pace with the times. It
should declare, in conformity
with the recent Report of the
Committee on the Age of Majority
[Cmnd. 3342, 1967], that
the legal right of a parent to the
custody of a child ends at
the 18th birthday: and even up till
then, it is a dwindling
right which the courts will hesitate to
enforce against the
wishes of the child, and the more so the older
he is. It
starts with a right of control and ends with little more
than
advice."
But his is by no means a solitary
voice. It is consistent
with the opinion expressed by the House in
J. v. C. [1970] A.C.
668 where their Lordships clearly
recognised as out of place the
assertion in the Agar-Ellis
cases 10 Ch.D. 49; 24 Ch.D. 317 of a
father's power bordering on
"patria potestas." It is consistent with
the view of
Lord Parker C.J. in Reg, v. Howard [1966] 1 W.L.R.
13, 14
where he ruled that in the case of a prosecution charging
- 25 -
rape of a girl under 16 the Crown
must prove either lack of her
consent or that she was not
in a position to decide whether to
consent or resist and added the
comment that "there are many
girls who know full well what it
is all about and can properly
consent." And it is consistent
with the views of the House in the
recent criminal case where a
father was accused of kidnapping his
own child, Reg, v. D.
[1984] A.C. 778, a case to which I shall
return.
For the reasons which I have
endeavoured to develop the
case law of the 19th and earlier
centuries is no guide to the
application of the law in the
conditions of today. The Agar-Ellis
cases 10 Ch.D. 49; 24
Ch.D. 317 (the power of the father) cannot
live with the modern
statute law. The habeas corpus "age of
discretion" cases
are also no guide as to the limits which should
be accepted today
in marking out the bounds of parental right, of
a child's capacity
to make his or her own decision, and of a
doctor's duty to his
patient. Nevertheless the "age of discretion"
cases are
helpful in that they do reveal the judges as accepting
that a
minor can in law achieve an age of discretion before
coming of
full age. The "age of discretion" cases are cases in
which
a parent or guardian (usually the father) has applied for
habeas
corpus to secure the return of his child who has left home
without
his consent. The courts would refuse an order if the child
had
attained the age of discretion, which came to be regarded as
14
for boys and 16 for girls, and did not wish to return. The
principle
underlying them was plainly that an o