Gillick v West Norfolk and Wisbech AHA
House of Lords
Citations:  AC 112;  3 WLR 830;  3 All ER 402;  Crim LR 113; (1985) 82 LSG 3531; (1985) 135 NLJ 1055.
The Department of Health issued guidance on how doctors should deal with under-age girls seeking contraceptive advice. It permitted doctors who had failed to convince a child to involve their parents to prescribe contraception. It also required them to maintain the child’s confidentiality. The claimant was the mother of five under-age girls. She sought assurances that none of her children would be provided contraception without her permission. The Department of Health refused to provide assurances.
The claimant sought a declaration that the guidance was unlawful. To succeed, she had to demonstrate that if doctors followed the advice they would necessarily act unlawfully. This turned on whether an under-age girl can in principle validly consent to contraception without the knowledge or consent of her parents. It also turned on whether a doctor who prescribes an under-age girl contraception aid or abet a sexual offence.
- Can a 16-year-old give valid consent to medical treatment without the knowledge or consent of their parents?
- Is a doctor who prescribes contraception or gives advice guilty of aiding or abetting a sexual offence?
The House of Lords held in favour of the Department of Health. Children can give valid consent to medical treatment in some circumstances. A doctor who gives under-age girls contraception believing it to be in their best interests is not an accessory to a sex offence. As such, the guidance did not inevitably require unlawful action.
This Case is Authority For…
The House of Lords held that a child is capable of giving valid consent to medical treatment if they possess the intelligence and maturity required to understand the nature and effects of the treatment. This includes a proper understanding of any moral or family issues involved in the decision. This has come to be known as ‘Gillick competence’.
Lord Fraser also set out what came to be known as the ‘Fraser Guidelines’. These set out when a doctor can give an under-age girl contraceptive advice/treatment without her parents’ knowledge or permission. The doctor must be satisfied that:
- The child will understand the advice or treatment;
- They are unable to persuade the child to inform her parents or let them inform her parents on her behalf;
- The child is likely to begin or continue sexual activity regardless of whether she receives advice or contraception;
- Her physical or mental health are likely to suffer if she does not receive proper advice or contraception; and
- It is in her best interests to receive advice or treatment without her parents’ consent.
A doctor who gives advice or treatment which he honestly believes to be in his patient’s best interests does not aid or abet a sex offence. This is because they lack the requisite mens rea. The same logic probably also applies to the inchoate offence of encouraging or assisting an offence.
Lords Fraser and Scarman argued that parental rights to control children derive from their duty to ensure their best interests. Competent children can determine their own best interests, so their parents cannot override their positive consent.
Lords Brandon and Templeman dissented. Lord Brandon thought there was no reason why a doctor is not an accessory just because he acts in good faith. Lord Templeman thought that doctors should normally get a court order to act against the parents’ wishes. He also did not think a doctor could determine a child’s best interests without their parents’ input. Though he contemplated some exceptional circumstances in which emergency contraception could be legally provided, he did not think that children had any absolute confidentiality right in the medical setting: the parents ought to be informed.