The Welfare Principle and Gillick Flashcards
J v C (1970)
Guardianship of Infants Act doesn’t only apply to parent-parent disputes, but also parent-stranger and stranger-stranger disputes. Rights and wishes of parents whether unimpeachable or not must be assessed and weighed in their bearing on the welfare of the child, which was paramount, also must preponderate in many cases but remain qualified and absolute.
Re B (A minor) (Sterilisation)
Looked to best interests of the patient - used welfare principle.
Re KD
Challenge to lack of presumption in favour of natural parents based on Article 8, ultimately consideration of Article 8 wasn’t necessary to decide case, obiter confirmed J v C reasoning, debate between WP and human rights seemed to be “one without consent”
Re G
Considerations in relation to welfare principle and best interests - everything that relates to the child’s development as a human being and to the child’s present and future life as a human being
Yousef v Netherlands
If Article 8 rights of parents and children are at stake, child’s rights must be paramount consideration, if necessary they must prevail.
Hewer v Bryant
Dwindling rights of parents “it is a dwindling right… it starts with a right of control and ends with little more than advice”
Gillick
Lord Fraser - (1) that the girl will understand the doctor’s advice, (2) that he cannot persuade her to inform her parents, (3) that she is likely to have sex anyway, (4) that unless she receives contraceptive treatment she will suffer and (5) that her best interests require that he give her contraceptive treatment. Lord Scarman - must not only understand the advice, but be mature enough to understand what is involved.
Re R
15 year old with mental health problems, lucidity fluctuated, held that Gillick competence couldn’t fluctuate from day to day or week to week. Parents retain independent right to consent if a competent child refused treatment. Patient was treated against her wishes.
Re W
Gillick right to consent did not give right to veto. Article 8 rights can’t be overridden by parents, but can be by the courts. No minor can override the consent of someone with parental responsibility by refusing to give consent.
Axon
Challenge to Gillick (especially in relation to abortion). Held that parents aren’t entitled to be informed about family planning advice and treatment, including abortion. Reaffirmed Lord Scarman’s approach. Parents shouldn’t retain Article 8 right to parental authority where child is Gillick competent.
L v P
Child refused DNA test, was Gillick competent. Judge recognised her refusal to consent could be overridden, but wasn’t in her best interests in this case
F v F (MMR vaccine)
Father wished daughters to be vaccinated, mother and daughters did not want vaccine. Court held vaccine was in the best interests of the girls - they lacked the maturity and balanced understanding required to make their own decision.
NHS Trust v A and others
Girl who was almost 16 was held not to be Gillick competent, notwithstanding her age. She had rejected proposed treatment despite being close to death. Judge made her a ward of court and made declaration that she should be treated.
NHS Foundation v P
17 year old refused to consent to medical treatment, hospital sought court order before they treated. Court decided she lacked capacity, declaration was granted, it was lawful and in her best interests to have treatment. Even if she was competent the court could override her interests.
Re JC (Medical Treatment - HIV)
Son of HIV+ parents (15 year old) did not want treatment for HIV even though he tested positive. Held that he was not competent to make decisions about his treatment. Welfare principle demanded that treatment start immediately, his needs and risks of harm if he did not get treatment outweighed the side effects and emotional harms from going against his and his parents wishes.
