Consent child

Question 1

Can a person under the age of 16 give valid consent ?

Answer 1

Gillick v Norfolk and Wisbech area health authority
-Woman with 5
daughters wanted assurance that the health authority that her daughters would not be given advice concerning contraceptives unless she consented. The health authority refused - she challenged the decision on the basis that her parental rights were undermined. she lost in the HOL.

Question 2

What were some principles drawn from Gillick v Norfolk and Wisbech area health authority

Answer 2

Lord Scarman :
Parental rights are not sovereign rights - the law recognise that children also have rights
Parental rights so long as they are needed for the protection of the person
Parental rights will terminate if and when the child achieves a significant understanding and intelligence to enable him/ her to fully understand what is proposed

Question 3

what did Lord Fraiser add to the Gillick vNorfolk and Wisbech health authority judgment

Answer 3

He gave out guidelines: (it was pertaining to the case but it can be used more broadly)

1. The girl will understand the doctor advice
2. The doc cannot persuade the doctor to inform their parents
3. Understand that the child will continue having sex with or without contraception
4. if not given treatment her mental or physical health will suffer
5. it’s in a child’s best interest to get contraceptives without parental consent

Question 4

ABORTION : RE p

Answer 4

15 year old wanted an abortion, her parents objected and they made it clear that they were willing to look after the child. But P’s need was paramount- in these circmstances, an abortion would be in her best interest and so the judge made the order.

Question 5

aAbortion :R (axon) SOS

Answer 5

Axon challenged the idea that a child below the age of 16 could have access to an abortion without gaining parental consent.
The Gillick/Fraiser guidelines were adapted to fit all treatment of dealing with sexual matters.
It is lawful for these services to be provided to children under the age of 16 without notifying their parents.- if the medical professional has applied the guidelines laid down by lord Fraiser in Gillick

Question 6

Can children under 16 give a valid refusal

RE R

Answer 6

RE r
15-year-old girl disturbed behaviour - required sedatives during her lucid state- she refused her medication. They found that she wasn’t Gillick competent - Gillick competency doesn’t apply if the child’s understanding and capacity varies from day to day because of the effect of their illness
Obiter :
Both a Gillick competent child and their parents are key holders. if a child refuses to give a key, consent can be gained from the parents
So a Gillick competent child can give valid consent but not a valid refusal.
local authority instituted wardship proceedings - so the courts could make decisions on her behalf

Question 7

Can children under 16 give a valid refusal

X (a child ) 2013

Answer 7

13 year old was pregnant, her parents wanted her to have an abortion - she didn’t want to. could parental rights override a child’s refusal?
Judge
Cannot be too prescriptive with these cases - each case needs to be judged on their own merits
Only the most compelling arguments could justify forcing a mother who wants to carry her baby to term, to abort it!
(Read more )

Question 8

Children under 16 - refusing medical treatment for religious reasons — RE ( a minor) 1993 Leukaemia

Answer 8

Judge
A doesn’t have a full understanding of the implications f what his refusal of treatment involves (death). The process of dying and the suffering he and his family would endure.
He was held to not be Gillick competent
Criticisms: Noone can fully grasp what it means to die- unachievable threshold hold for children to meet. Therefore cases involving death a child will not be found Gillick competent - infringing on their autonomy.

Question 9

Children under 16 - refusing medical treatment for religious reasons —RE S 1994

Answer 9

S suffered from thalessiamia. The judge said that it wasn’t enough to know that you will die - you have to have an understanding of the suffering it will entail.
Jackson ‘it seems that the test for capacity when the child wishes to make a life or death decision is set so high that no child could ever be competent.

Question 10

Children under 16 - refusing medical treatment for religious reasons RE L

Answer 10

14 YEAR OLD (JW) suffered third-degree burns, refused blood transfusion he needed for surgery - found to not be Gillick competent for 2 reasons 1.very sheltered 2. she didn’t understand that she would die of gangrene- could not comprehend the nature of her death. Even if Gillick competent her refusal could have been overridden by her parents.

Question 11

Children under 16 - refusing medical treatment for religious reasons –RE M

Answer 11

15 year old needed a heart, refused treatment because she didn’t want to take tablets for the rest of her life. it was clear she didn’t want to die. She was held to not be competent.

Question 12

What statute deals with allowing a child above the age of 16 to give a valid consent?

Answer 12

Section 8 (1) of the law reform Act 1969: For children 16- 18 rebuttable presumption in favour of capacity to consent to surgical, medical or dental treatment. where a minor has by virtue of this section given effective consent - it is not necessary to obtain any consent from his parents or guardian. If unable to understand, retain or use or weigh the information - The mental capacity act 2005

Question 13

Re W

Answer 13

16 year old refused all treatment for anorexia - An argument was made that she had the same right to refuse treatment as an adult. Lord Donaldson: only one flapjacket is needed for a doctor to treat - A flapjacket symbolises consent. straightjacket can be gained from either the child (Gillick competent under 16 or a child over 16) or parent
The judgement was more focused on the prevention of the doctors being sued. Also with regards to the text of this case, there were other ways which it could have been death with. Anorexia is a mental disease - she could have been sectioned under the act and received treatment in that way.
No minor whatever age has the power to refuse consent to treatment and override a consent to treatment y someone who has parental responsibility over the minor

Question 14

An NHS foundation hospital v P

Answer 14

17 year old - overdosed - didn’t want treatment because she believed her life was shit. An emergency judgment was needed because the situation was time sensitive. When a Gillick competent child refuses to give consent to the treatment the court may override the child’s wishes in her best interests and gives consent to their treatment.
Anyone under the age of 18 cannot give a valid refusal

Question 15

What are the courts powers?

Answer 15

Inherent jurisdiction - Court’s powers are theoretically limitless and extend beyond the powers of a natural parent. Thus there’s no doubt that it has the power to override the refusal of a minor whether over the age of 16 or under but Gillick competent.
Wardship - Same range of powers
Specfic issue order - Re Jm

Question 16

Human right :

ECHR 1950

Answer 16

Article 8(1)“Everyone has the right to respect for his private and family life, his home and his correspondence”.
Article 9(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance

Question 17

Human right :

United Nations Convention on the Rights of the Child 1989

Answer 17

Article 16(1): No child shall be subjected to arbitrary or unlawful interference
with his or her privacy, family, home or correspondence, nor to unlawful
attacks on his or her honour and reputation.
Article 12(1): States Parties shall assure to the child who is capable
of forming his or her own views the right to express those views
freely in all matters affecting the child, the views of the child being
given due weight in accordance with the age and maturity
of the child.
Article 5: States Parties shall respect the responsibilities, rights and duties of parents…or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
Article 3(1): In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Question 18

Further critiques

Answer 18

• Bridge (1999): “The law should openly declare that welfare reigns when grave decisions with momentous outcomes are considered and recognise that adolescent autonomy is inevitably circumscribed”.
• Cave : Gillick is an “inadequate tool” for the court’s task of adjudicating between the complexities of protecting welfare and promoting autonomy”.

Question 19

SECTION 4 – BEST INEREST TEST UNDER MCA – USED FOR ADULTS-

WHY CANT WE USE THIS TEST ON BABIES?

Answer 19

• They don’t have present or past view they can verbalise
• No actions to infer what there best interest is ?
• Treatment is different for babies – also they have parents with parental responsibility

Question 20

According to Children Act 1989 s.2-4. who has parental responsiblity

Answer 20

• PR rests with both parents provided they are names on the birth certificate – regardless of whether they are married or not.
• Birth mother automatically has PR.
The father has PR if he is on the birth certificate, married to mother at the time of birth, entered into a PR agreement or obtained court order granting him PR.
• Other people can have PR if they have a court order or appointed guardian on death of parent.
• PR can also be had by fathers or second female partners named in Child Care Arrangement Orders – Children and Families Act 2014.

Question 21

How many parents are needed to give adequate PR

Answer 21

One person with PR required: S. 2(7) of the Children Act 1989
Two persons with parental responsibility required for serious matters:
• Sterilisation: Re J [2000]
• Non-therapeutic circumcision: Re J (child’s religious upbringing and circumcision) (1999)
• Vaccination – Re C (Welfare o the Child: immunisation) [2003]

Question 22

What is the doctrine of necessity and when will it kick in ?

Answer 22

– the doctrine of necessity - allows a doctor to a treat a child who hasn’t received consent from the child or parent – only available if there was no time to apply to court or get PR consent - Re O [1993], Giilick v West Norfolk and Wisbech AHA [1984]. The doctors will not be sued – battery / assault under criminal law
S. 3(5)(b) Children Act 1989 – people who have temporary care of child, such as teacher and childminders are entitled to do what is reasonable to safeguard child’s welfare.