Alex RKWhen should refusal of treatment by someone under 18 be determinative? For many years, it had been thought that the Court of Appeal had resolved this question in two decisions in the 1990s: In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and in In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64, and that it was settled (if sometimes controversial) law that a court could always override such a refusal and settled (if, equally, sometimes controversial) practice that it would almost invariably do so.
In An NHS Trust v X [2021] EWHC 65 (Fam), Sir James Munby has upheld the law in the face of a very wide-ranging challenge to this understanding brought on behalf of a Jehovah’s Witness. As there remains the potential for an application for permission to appeal to be brought on her behalf and as I have been involved in the case, and may remain involved, I will not comment upon the merits of the judgment, but rather set out its key points.
The application before the court and the key question
The application before the court was for a “rolling order” which would authorise the provision of “top up” blood transfusions in relation to X. X was, at the time of the application 15, but Sir James Munby considered that he should also address the position up until her 18th birthday, notwithstanding the fact that the relevant legal landscape would change upon her 16th birthday, not least in light of s.8 Family Law Reform Act 1969.
At paragraph 30, Sir James Munby identified that, “in some non-medical contexts the decision of a Gillick competent child which is not objectively foolish or irrational will be determinative,” and, likewise that “in relation to some invasive medical procedures (whether or not involving surgery) the decision of a Gillick competent child will be determinative: see Re A (A Child) [2014] EWHC 1445, [2014] Fam Law 1229 (a case where a Gillick competent girl 13 years old was held to have the right to decide for herself whether or not to have an abortion).” However, in the instant case, the question for him was whether the Gillick competent child’s decision in relation to a particular invasive medical procedure would not be determinative.
It should perhaps also be noted that, as the application did not raise the issues, Sir James expressly did not address (1) the question of whether a parent can override a child’s refusal in the exercise of their parental responsibility; or (2) medical treatment in the context of hte Mental Health Act 1983.
The concept of Gillick competence and its relevance after the age of 16
Sir James did not address in detail what was meant by Gillick competence, as it was taken as read that X was Gillick competent. He did, however, in obiter comments “respectfully disagree” with the approach adopted by Cobb J in In re S (A Child) (Child Parent: Adoption Consent) [2017] EWHC 2729 (Fam), [2019] Fam 177, [2018] 2 FLR 111, in which Cobb J had, in essence, read the test of Gillick competence as equating to the functional aspect of the MCA 2005 test. Sir James considered that this approach, cited with seeming approval by the Divisional Court in Bell & Anor v The Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274 (Admin) wrongly approached matters on the premise that “Gillick competence is in some way related or even analogous to capacity in the sense in which the expression is used in the 2005 Act. It is not; the two are, as I have said, both historically and conceptually quite distinct” (paragraph 75).
Because Sir James was being asked to consider the position both before and after the age of 16, he had cause to consider the application of s.8 Family Law Reform Act 1969. Clarifying a point which has often been misunderstood, he noted at paragraph 56 that “[f]or the purposes of section 8 we are concerned only with legal capacity; the effect of the statute, in relation to its specific subject matter (medical treatment) is, as it were, to reduce the age of majority from 18 to 16 – that, and no more. Section 8 is not concerned with and does not operate so as to deem the child to have mental capacity.”
At paragraph 77, Sir James Munby, coming back to his analysis of what Lord Donaldson (in particular) had held in Re R and Re W in relation to the application of the concept of Gillick competence after the age of 16 (see paragraph 57), identified that, at least for purposes of medical treatment:
- Until the age of 16, the relevant inquiry is as to whether the child is Gillick competent;
- Once the child reaches the age of 16: (i) the issue of Gillick competence falls away, and (ii) the child is assumed to have legal capacity in accordance with s.8 Family Law Reform Act 1969, unless (iii) the child is shown to lack mental capacity as defined in ss. 2(1) and 3(1) Mental Capacity Act 2005.
At paragraph 78, Sir James also noted that:
In relation to those falling within the scope of the Mental Capacity Act 2005, including those who have attained the age of 16, the courts do not examine separately capacity to consent and capacity to refuse medical treatment. Rather, the courts proceed by examining the question of whether the person has the capacity to make a decision in relation to the treatment. I see no reason why, in principle, the same approach should not be followed when the question is one not of mental capacity but of Gillick competence.
Whether a refusal of a Gillick competent/capacitous child should be binding
Sir James Munby had little hesitation in finding that both Re R and Re W made clear that, as a matter of law: (1) that in relation to medical treatment neither the decision of a Gillick competent child nor the decision of a child 16 years old or more is determinative in all circumstances; and (2) that there are circumstances in which the decision of such a child can be overridden by the court (paragraph 53). He rejected the submission that both of these cases were obiter on these two points – or, if they were obiter, that they were anything other than “tough [i.e.] argued law” (see paragraphs 60-1). The passage of the MCA 2005 did not alter the position, he considered at paragraphs 63-84, save for making clear that the concept of Gillick competence falls away in relation to medical or surgical treatment.
At paragraphs 86-104, Sir James Munby engaged in a detailed analysis of a line of Canadian case-law upon which X placed reliance, in particular the decision AC and Others v Manitoba (Director of Child and Family Services) 2009 SCC 30, [2009] 2 SCR 181, [2009] 5 LRC 557. However, he found that, in fact, this jurisprudence not only did not cast doubt upon the continued validity of Re R or Re W, but indeed did not contain “anything which even begins to suggest the need for any judicial re-evaluation of what they establish” (paragraph 104).
At paragraphs 106-158, Sir James analysed the arguments advanced by reference to the ECHR, prefacing his analysis with “the observation that the combined researches of counsel have revealed nothing in the Strasbourg jurisprudence expressly addressing the issues before me” (paragraph 106). His analysis proceeded as follows:
- Article 2: Even if the obligations under the Article were limited as X submitted to providing an effective deterrence against threats to the right to life and to avoiding systemic deficiencies putting life at risk, Sir James found that the State could not be prevented from “having regard to the preservation of life as a factor that can permissibly be taken into account in appropriate circumstances in evaluating, for example, whether there has been a breach of Article 3 or whether the qualifications to Articles 8 and 9 come into play” (paragraph 108);
- Article 3: The answer to the question of principle as to why Articles 3 and 8 could protect the refusal in all circumstances of life-sustaining treatment by capacitous adults, but not necessarily by children was to be found in identifying that it was the goal of the court to secure the future autonomy of that child as a mature adult. There was nothing in the jurisprudence of the Strasbourg court recognising, let alone mandating States to enforce, a principle that a child, even a child who, to use our terminology, is Gillick competent or who has reached the age of 16, is in all circumstances autonomous in the sense that a capacitous adult is autonomous; nor, specifically, that such a child is autonomous when it comes to deciding whether or not to accept life-saving medical treatment (paragraph 120). Indeed, Sir James found that such indications as there were in the Strasbourg case-law contradict any such sweeping principle.
- Article 5: the problem was how a Gillick competent child could be of “unsound mind” to justify any deprivation of liberty under Article 5(1)(e). Sir James identified two potential answers and two possible reasons why there was no breach of Article 5. The first was that he had (at the first hearing) made no order providing for X to be restrained or prevented from leaving the hospital when she was administered the top up transfusion. Nor did she in fact seek to do so. She acquiesced in – went along with – the order the court had made, such that the issue fell away on the facts of the case. The second could derive from the “carve-out” from Article 5 in the context of immediately necessary life-saving medical treatment identified in Ferreira. This took the court into “difficult and as yet only partially explored part of the legal landscape” (paragraph 128), which did not need to be decided on the facts of the case before him, but Sir James was inclined to think that blood transfusion in X’s case would fall within the carve out – i.e. it was at most a restriction on her liberty of movement, rather than a deprivation of her liberty;
- Article 8: The analysis applied in relation to Article 3 applied with equal if not greater force in relation to Article 8, where the rights engaged were not absolute, but qualified by Article 8(2). Sir James identifying that preserving the lives of children until adulthood is a legitimate aim (paragraph 134). He also rejected (at paragraph 139) the submission that purely common law rules did not amount to a procedure prescribed by law, nor that the child’s welfare was the child’s paramount consideration;
- Article 9: This involved consideration, in particular, of the case of Jehovah’s Witnesses of Moscow v Russia (Application No 302/02) (2011) 53 EHRR 141, but, on a proper analysis, this case was limited to adults. The same analysis as applied to Articles 3 and 8 applied equally to Article 9 (paragraph 143);
- Article 14: It was submitted that X was treated differently on the grounds of age, and that this could not be justified – whilst a fixed age could be prescribed for certain activities, justified by administrative convenience, this could never justify denying the fundamental right to human dignity, bodily autonomy, self-determination, and religious conscience. Sir James Munby found this submission “inherently problematic” (paragraph 152), it not being “administrative convenience but something much fundamental – the protection of the welfare of children – which lies at the root of the impugned provisions.” He also noted that both the Strasbourg case-law and the Supreme Court of Canada in AC had rejected age-based discrimination arguments in circumstances where the aim was the protection of the interests of minors;
The picture in the round
Sir James then took a step back, to address X’s submission that he must address Mr Brady’s submission that times have changed and views as to the proper balance between medical paternalism and patient autonomy have altered. He agreed that “[o]f course, a family court cannot be blind to the changes in society’s views and values which are such a striking feature of modern life, and this is well recognised in the authorities” (paragraph 159). However, the court could not simply reject the law as set out in Re R and Re R: “merely because society’s views have changed, even assuming that they have”:
162. At the end of this lengthy analysis, my clear and firm conclusion is that the learning in In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64 emerges unscathed from Mr Brady’s attack. The change for which he contends is a matter for Parliament, not the courts.
The rolling order
Having found against X on the question of whether the court could make an order requiring her to be treated against her competent/capacitous will, Sir James was not persuaded that he should make the rolling order sought by the Trust. Four submissions were made in support of the overall submission that an order should not be made, Sir James identifying that he agreed with the force of the submission, if not the detail of the points. Those four submissions were: (1) determining whether or not a medical treatment is required is highly fact specific, particularly in the context of whether blood transfusions are required; (2) granting a rolling order would run the risk of privileging medical paternalism over judicial protection; (3) there was a risk in a case such as X’s of discrimination and religious stereotyping, based on the erroneous assumption that blood transfusions are always necessary whenever recommended by a clinician and that a patient who is a Jehovah’s Witnesses is always wrong to refuse such a procedure; and (4) X had not yet had the opportunity to test the medical evidence rigorously, which would be a pre-requisite if there was to be a rolling order lasting two years.
Appeal?
Sir James refused the application for permission to appeal (including for permission to ‘leapfrog’ to the Supreme Court). X can apply directly to the Court of Appeal for permission.
