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Report No. 196

(13). Gillick vs. West Norfolk Wisbech Area Health Authority, 1986 AC 112: 1985(3) All ER 402 (HL): ('Gillick Competence')

The case related to a slightly different problem but certain principles laid down therein regarding 'consent' have application in cases of withdrawal of life support. The test laid down in this case is known as 'Gillick Competence'.

In this case, the plaintiff who had five daughters under the age of 16, sought an assurance from the Local Area Health Authority that her daughters would not be given advice and treatment on contraception without the plaintiff's prior knowledge and consent while they were under 16.

This she did keeping in mind the circular issued by the Dept. of Health and Social Security that, while normally a doctor should not advice use of contraceptives to girls under 16 without consent of the parents, in exceptional circumstances if they advised in that regard without the consent of the parents, it may not be unlawful keeping in view the principle of confidentiality between doctors and their clients. Initially, she approached the local Area Health Authority but they refused to respond. She then filed the present action.

According to her, the circular amounted to advice to doctors to commit the offence of causing or encouraging unlawful sexual intercourse between males and girls under 16, contrary to section 28(1) of the Sexual Offences Act, 1956 or the abetting of it.

The learned Judge (Woolf J, as he then was) held that a doctor acting as per the circular would not be committing any offence of causing or encouraging unlawful sexual intercourse. The Court of appeal, however, reversed the judgment (1985(1) All ER 533).

The House of Lords was approached by the Deptt. of Health and the appeal was allowed. It was held that, having regard to the reality that a child became increasingly independent as it grew older, parental authority can be recognized only as long as they were in need of the protection and such rights yielded to the child's right to make its own decisions when it (or) reached a sufficient understanding and intelligence to be capable of making up its own mind. A girl under 16 did not, merely by reason of her age, lack legal capacity to consent to contraceptive advice and treatment by a doctor. (Lord Templeman dissented).

It was held by the majority that a doctor, who in exercise of his clinical judgment gave contraceptive advice and treatment to a girl under 16 without her parents' consent, did not commit any offence under the 1956 Act, because the bona fide exercise of a clinical judgment by the doctor negated mens rea which is an essential ingredient of those offences on this aspect. (Lord Brandon dissented).

Therefore, a doctor had such discretion provided the girl had reached an age where she had a sufficient understanding and intelligence to enable her to understand fully what was proposed, that being a question of fact in each case. The Deptt's circular could be followed by a doctor without involving him in any infringement of parental rights or breach of criminal law. (Lord Brandon and Lord Templeman dissenting).

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