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Coercion or caring: analysing adolescent autonomy

Published online by Cambridge University Press:  02 January 2018

Margaret Brazier  and
Caroline Bridge
Margaret Brazier
Affiliation:
University of Manchester
Caroline Bridge
Affiliation:
University of Manchester
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Extract

The judgment of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority appeared to usher in an era ofjudicial respect for children's rights and the autonomy of the older child. Just a decade later the decisions of the Court of Appeal in Re R and Re W were perceived as signalling a reversion to judicial paternalism and dealing a near fatal blow to adolescent autonomy. The fundamental philosophy of the Children Act 1989 itself, in which the wishes of children and the ‘rights’ of the more mature minor play such a central part, came under attack in a continuing series of cases at first instance where judges overruled the judgments of older children in favour of the judgment of their doctors.

Type
Research Article
Information
Legal Studies , Volume 16 , Issue 1 , March 1996 , pp. 84 - 109
Copyright
Copyright © Society of Legal Scholars 1996

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References

1. [1985] 3 All ER 402, HL (hereafter simply cited as Gillick).

2. See, for example, J Eekelaar ‘The Emergence of Children's Rights’ (1986) 6 OJLS 161.

3. Re R (A Minor) (Wardship: Consent to Medical Treatment) [1991] 4 All ER 177, CA (hereafter simply cited as Re R).

4. Re W (A Minor) (Medical Treatment) [1992] 4 All ER 627 CA (hereafter simply cited as Re W).

5. J Murphy ‘W(h)ither Adolescent Autonomy?’ [1992] JSWFL 529,542; D Dickenson ‘Children's Informed Consent to Treatment: is the Law an Ass?’ (1994) 20 Journal of Medical Ethics 205.

6. See s 1 (3)(a) where the court is instructed to have regard in particular to ‘the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’.

7. Note ss 38(6), 43(8) and 44(7) apparently empowering children ‘of sufficient understanding to make an informed decision’ to refuse to submit to medical and psychiatric examinations considered necessary to take action to protect them. But see the solution reached by Douglas Brown J to override a purported veto on a psychiatric assessment under the Act in South Glamorgan County Council v Wand B [1993] 1 FLR 574.

8. South Glamorgan County Council v Wand B, above; Re K Wand H (Minors) (Medical Treatment) 1 FLR 1; Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386; Re S (A Minor) (Consent to Medical Treatment) [1994] 2 FLR 1065.

9. See Murphy op cit; G Douglas ‘The Retreat from Gillick’ (1992) 55 MLR 569 and note in particular Douglas's comment on Re S, above, at [1995] Fam Law 20.

10. The judgments in Re E and Re S relating to refusal of blood transfusions by teenage children of Jehovah's Witness families are particularly problematic.

11. [1992] 4 All ER 649.

12. Law Corn Report No 23 1 (London: HMSO, 1995).

13. At 661.

14. [1991] 4 A11 ER 177, CA.

15. [1992] 4 All ER 627, CA.

16. A preference not confined to litigation involving minors; see Sidaway v Royal Bethlem Hospital [1985] 1 All ER 643, HL; M Brazier Medicine, Patients and the Law (London: Penguin, 2nd edn, 1992) pp 78–89.

17. At 184.

18. [1985] 3 All ER 402, HL.

19. We gratefully adopt this convenient if inelegant phrase used in argument in the hearing of Re R and adopted by Lord Donaldson himself at 187.

20. A Bainham ‘The Judge and the Competent Minor’ (1992) 108 LQR 194, 198; R Thornton ‘Multiple Keyholders-Wardship and Consent to Medical Treatment’ (1992) CLJ 34, 36.

21. At 635.

22. [1992] 4 All ER 627 at 642–3, and 648–9.

23. See J Montgomery (1993) 5 Journal of child Law 117; Murphy op cit; Bainham op cit; Thornton op cit.

24. At 635.

25. [1992] 4 All ER 649 at 663.

26. At 637 per Lord Donaldson MR; at 644–5 per Balcombe LJ; at 648 per Nolan LJ.

27. See Re R [1991] 4 All ER 177 at 184 per Lord Donaldson MR.

28. Re W at 643 per Balcombe LJ.

29. See Re W per Balcombe LJ at 643.

30. Judicial fear of provoking a malpractice explosion may also play a part in hesitancy to affirm any patient's rights, see, for example, M v Newham LBC [1994] 2 WLR 554 at 576 per Sir Thomas Bingham MR CA.

31. JB Mill On Liberty in M Warnock (ed) Utilitarianism (London: Fontana 1972) ch I, p 187.

32. The import of changing social circumstances is expressly acknowledged in Hewer v Bryant [1969] 3 All ER 578, and in Gillick itself [1985] 3 All ER 402 at 412; and see Dickenson op cit. at p 206.

33. Because if the girl is Gillick competent she will be subject to a duty of confidence to her.

34. At 423.

35. Reflecting Lord Denning MR's description of the ‘dwindling’ role of parental rights generally which start ‘… with a right of control and ends with little more than advice’ HeweR v Bryant [1969] 3 All ER 578 at 582.

36. See Gillick at 432 per Lord Templeman.

37. See Woolf J at first instance in Gillick [1984] 1 All ER 365 at 374.

38. As in Re W.

39. As in Re R; South Glamorgan County Council v Wand B [1993] 1 FLR 574; Re K W and H [1993] 1 FLR 1.

40. As in Re E [1993] 1 FLR 386; Re S [1994] 2 FLR 1065.

41. Indeed it has been argued that Gillick competence sets a more rigorous test of understanding and intelligence than that applicable to adults.

42. See Chatterton v Gerson [1981] I All ER 432; Re C [1994] 1 All ER 819 and see M Brazier Medicine Patients and the Law at pp. 100–102.

43. Law Com Report No 231 Mental Incapacity (London: 1995) para 2.52.

44. See paras 3.14 to 3.19.

45. But ought she then to be treated under the Mental Health Act as was the adult patient in B v Croydon District Health Authority [1995] 1 All ER 683 CA? Note too Riverside Mental Health NHS Trust v Fox [1994] 1 FLR 614.

46. [1992] 4 All ER 649.

47. In The Value of Life (Routledge, 1985) pp 195–205.

48. At 197.

49. See P Alderson Children's Consent to Surgery (Open University Press, 1993).

50. At 199.

51. He may as yet not have settled any permanent self-goals; see J Eekelaar ‘The Interests of the Child and the Child's Wishes: The Role of Self-Determinism’, in The Besf Interests of fhe Child (ed P Alston) (Oxford: Clarendon Press, 1994) pp 42–61.

52. [1991] 4 All ER 177.

53. [1992] 4 All ER 627.

54. At 637 per Lord Donaldson MR.

55. At 192.

56. Bromley & Lowe Bromley's Family Law (London: Butterworths, 1992) p 249 and Eekelaar & Dingwall The Reform of Child Care Law (London: Routledge, 1990) p 24.

57. Bromley at p 540 assumed that Re R did not affect this right of veto, and Hoggett Parents and Children: The Law of Parental Responsibility (London: Sweet & Maxwell, 4th edn, 1993) at 186 states that the veto ought not to be affected by Re W.

58. Eekelaar & Dingwall The Reform of Child Care Law at p 87.

59. South Glamorgan County Council v W [1993] 1 FLR 514.

60. The courts will naturally be anxious to ensure a disturbed child receives the treatment she needs; see Hoggett op cit at p 186.

61. The Mental Health Act is used to compel treatment in some adolescent psychiatric units.

62. Hoggett Mental Health Law (Sweet & Maxwell, 3rd edn, 1990) p 100.

63. [1993] 1 FLR 574.

64. At 579–81.

65. This was claimed by the only doctor to give evidence in the care proceedings.

66. At 579.

67. The compulsory treatment of anorexia nervosa is viewed as an ‘act of compassion’ by Tiler et al ‘Compulsory Treatment for Anorexia Nervosa: Compassion or Coercion?’ [1993] 162 British Journal of Psychiatry, 679.

68. Elton et al ‘Withholding consent to lifesaving treatment: three cases’ (1995) 310 British Medical Journal, 376.

69. Section 10(9) sets out the requirements for leave, but even if the court grants a specific issue order it can only survive the child's 16th birthday in exceptional circumstances, s 9(6).

70. Section 9(1).

71. Op cit at n 2.

72. At 584.

73. The inherent jurisdiction shall not be exercised ‘for the purpose of conferring on any local authority power to determine any question which has arisen … in connection with any aspect of parental responsibility for a child’.

74. [1992] 4 All ER 627 at 631.

75. At 584.

76. See C Lyon ‘What's Happened to the Child's ‘Right to Refuse’?’ (1994) 6 JCL 84.

77. [1993] 1 FLR 854.

78. It is an order ‘giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child’.

79. See, for example, Lord Donaldson's definition of the specific issues order in Re B (A Minor) (Residence Order: Exparte) [1992] 2 FLR 1 at 6.

80. Re R (A Minor) (Blood Transfusion) [1993] 2 FLR 757.

81. At 856.

82. Thorpe J at 857 stated that she was, ‘undoubtedly, mentally ill and it would have been possible, in professional judgment, to have secured her admission under the Mental Health Act but her parents preferred and [the hospital] always support this preference, that her case should be managed under the provisions of the Children Act 1989’.

83. At 859.

84. And appears to contradict advice given in another unreported case by Sir Stephen Brown (President of the Family Division; see Elton et al op cit at p 375).

85. Reported [1993] I FLR 386, although heard by the Family Division of the High Court in September 1990, prior to the coming into effect of the Children Act.

86. At 391.

87. Thorpe J discusses these elements of the Jehovah's Witness faith in Re S (A Minor)(Medical Treatment) [1993] 1 FLR 376.

88. [1994] 2 FLR 1065.

89. At 1075.

90. Ibid.

91. [1992] 4 All ER 649 at 662.

92. Re T at 662.

93. Re S(A Minor) (Medical Treatment) [1994] 2 FLR 1065, 1074. The child psychiatrist, in her evidence, presented this idea of S's as the most worrying aspect of her understanding.

94. At 1072.

95. At 1074.

96. J A Devereux et al ‘Can Children Withhold Consent to Treatment’ (1993) 306 BMJ 1459.

97. See the criticism of such an ‘irrational’ perspective on growing up in D Dickenson and D P H Jones ‘True Wishes: Philosophical and Clinical Aapproaches to the Developing Case-law on Consent in Children’ (1995) Philosophy, Psychiatry and Psychology 4.

98. [1992] 4 All ER 649.

99. Law Corn Report No 231 Mental Incapacity (London: HMSO, 1995) Part III (1).

100. Para 3.8.

101. See above at n 51.