An application was made for a declaration allowing a hospital to treat a girl aged 16 years suffering from anorexia nervosa against her wishes.
Held: The order was made. It is a feature of anorexia nervosa that it is capable of destroying the ability to make an informed choice. Where a Gillick-competent child refuses to give her consent to the treatment, the court may, in the exercise of its inherent jurisdiction, override the child’s wishes in her best interests and give its consent to her treatment.
Lord Donaldson MR said: ‘There is ample authority for the proposition that the inherent powers of the Court under its parens patriae jurisdiction are theoretically limitless and that they certainly extend beyond the powers of a natural parent . . There can therefore be no doubt that it has power to override the refusal of a minor, whether over the age of 16 or under that age but ‘Gillick competent’. It does not do so by ordering the doctors to treat, which, even if within the Court’s powers, would be an abuse of them, or by ordering the minor to accept treatment, but by authorising the doctors to treat the minor in accordance with their clinical judgment, subject to any restrictions which the Court may impose.’ and ‘Hair-raising possibilities were canvassed of abortions being carried out by doctors in reliance upon the consent of parents and despite the refusal of consent by 16- and 17-year-olds. Whilst this may be possible as a matter of law, I do not see any likelihood taking account of medical ethics, unless the abortion was truly in the best interests of the child. This is not to say that it could not happen.’
Nolan LJ said that the duty of the court is to ensure so far as it can that children survive to attain the age of 18 at which an individual is free to do with his life what he wishes, and ‘In considering the welfare of the child, the court must not only recognise but if necessary defend the right of the child, having sufficient understanding to take an informed decision, to make his or her own choice. In most areas of life it would be not only wrong in principle but also futile and counter-productive for the court to adopt any different approach.’
Balcombe LJ said: ‘Accordingly the older the child concerned the greater the weight the court should give to its wishes, certainly in the field of medical treatment. In a sense this is merely one aspect of the application of the test that the welfare of the child is the paramount consideration. It will normally be in the best interests of a child of sufficient age and understanding to make an informed decision that the court should respect its integrity as a human being and not lightly override its decision on such a personal matter as medical treatment, all the more so if that treatment is invasive. In my judgment, therefore, the court exercising the inherent jurisdiction in relation to a 16- or 17-year-old child who is not mentally incompetent will, as a matter of course, ascertain the wishes of the child and will approach its decision with a strong predilection to give effect to the child’s wishes.’
Judges:
Lord Donaldson MR, Nolan LJ, Balcombe LJ
Citations:
[1993] Fam 64, [1992] 4 All ER 627, [1992] 3 WLR 758
Jurisdiction:
England and Wales
Cited by:
Cited – In re T (a Minor) CA 24-Oct-1996
C was born with a liver defect. After a failed operation, the parents, both caring health professionals, decided not to put him through major surgery again. The local authority and doctors obtained an order to allow a potentially life saving liver . .
No longer reflects the law – Re X (A Child) FD 29-Oct-2020
Limited transfusion against young adults wishes
The Court was asked whether a blood transfusion should be administered to a young woman who was almost, not quite, 16, against her profound religious beliefs. X is a Jehovah’s Witness. She has explained to me, in very powerful and moving words, the . .
Lists of cited by and citing cases may be incomplete.
Children, Health
Updated: 04 May 2022; Ref: scu.536470