Report No. 196

(14) Re (A minor)(Wardship: Medical Treatment), 1991(4) All ER 177 (CA)(Lord Donaldson of Lymington, Stranghton & Farquharson L.JJ.)

R, a 15 year old who had psychotic problems was placed in a children's home. She experienced visual and audatory hallucinations. She was violent too and paranoid. Ward's mental condition was fluctuating between normal behaviour and psychosis. The local authority placed her in an adolescent psychiatric unit where she was sedated from time to time with her consent. This it did because the patient was behaving in a paranoid, argumentative and hostile manner.

Although she had clear intervals when her mental illness was in recession, the prognosis was that if the medication was not administered, she would return to her psychotic state. However, in rational and lucid periods, when she had sufficient understanding to make the decision, she objects to taking the drugs. In those circumstances, the Local Authority refused to authorize the administration of drugs against her will, while the unit was not prepared to continue to care for her unless it had authority to administer appropriate medication to control her.

The Area Local Authority commenced wardship proceedings and applied for leave for the unit to administer medication, including anti-psychotic drugs, whether or not the ward consented. The question arose (i) whether the Judge had power to override the decision of the ward who was a minor to refuse medication and treatment irrespective of whether the minor was competent to give her consent and (ii) whether he had the requisite capacity to accept or refuse such medication or treatment.

Walter J granted the application, holding that although a wardship judge could not override the decision of a ward who had the requisite capacity, on the facts, the ward did not have the capacity. The Official Solicitor as guardian-ad-litem of the ward appealed, contending that if a child had the right to give consent to medical treatment, the parents, (and a fortiorari) the wardship Court's right to give or refuse consent was terminated. On appeal, the Court of Appeal confirmed the judgment holding that the Judge was right in granting the application for the unit to administer medication irrespective of whether the ward consented.

In the course of judgment, Lord Donaldson MR referred to Gillick's case (1985)(3) All ER 402 and referred to, what is now known as "Gillick Competence". He said:

"The test of 'Gillick Competence', although not decisive in this case, is nevertheless of general importance. The House of Lords, in that case, was quite clearly considering the staged development of a normal child. For example, at one stage it (the patient) will be quite incapable of deciding whether or not to consent to a dental examination, let alone treatment. At a later stage, it will be quite capable of both, but incapable of deciding whether to consent to more serious treatment.

But there is no suggestion that the extent of this competence can fluctuate upon a day-to-day or week-to-week basis. What is really being looked at is an assessment of mental and emotional age, as contrasted with chronological age, but even this test needs to be modified in the case of fluctuating mental disability to take account of that misfortune. It should be added that, in any event, what is invoked is not merely an ability to understand the nature of the proposed treatmen.- in this case compulsory medicatio.- but a full understanding and appreciation of the consequences both of the treatment in terms of intended and possible side effects and, equally important, the anticipated consequences of a failure to treat.

But even if she was capable on a good day of a sufficient degree of understanding to meet the Gillick criteria, her mental disability, to the cure or amelioration of which the proposed treatment was directed, was such that on other days, she was not only 'Gillick incompetent', but actually sectionable. No child in that situation can be regarded as 'Gillick Competent' and the Judge was wholly right in so finding in relation to R."

In the body of the Judgment, it was held that if a 'Gillick Competent' person consents, there can be no problem but where such person refuses, "Consent can be given by someone else who has parental rights or responsibilities. The failure or refusal of the 'Gillick competent' child is a very important factor in the doctor's decision whether or not to treat, but does not prevent the necessary consent being obtained from another competent source."