Gillick v West Norfolk and Wisbech Area Health Authority (Gillick v Department of Health and Social Security)

A minor under 16 may consent to medical treatment when she has sufficient understanding and intelligence to understand fully what is proposed. Parental authority exists to protect the child and diminishes as the child acquires capacity; it is not an absolute veto.

A doctor may exceptionally give contraceptive advice or treatment without parental knowledge or consent. The doctor should first try to involve the parents and must be satisfied that the young person understands the advice, will probably continue sexual intercourse, risks harm without treatment, and requires confidential treatment in her best interests. Honest treatment for health and welfare does not, without more, amount to aiding unlawful intercourse.

Gillick v West Norfolk and Wisbech Area Health Authority (Gillick v Department of Health and Social Security) concerned departmental guidance stating that, in exceptional cases, a doctor could provide contraceptive advice or treatment to a girl under 16 without parental knowledge or consent. Mrs Gillick, the mother of five daughters under 16, sought declarations that the guidance was unlawful and that the local health authority's doctors could not advise or treat her daughters without parental consent.

Woolf J dismissed the action at [1984] QB 581. The Court of Appeal allowed Mrs Gillick's appeal and granted the declarations. The Department appealed to the House of Lords. The central issues were the minor's capacity to consent, the extent of parental authority, and whether confidential contraceptive treatment exposed a doctor to criminal liability or offended public policy.

1. Appeal allowed by a majority of three to two. Lord Fraser, Lord Scarman and Lord Bridge held that the departmental guidance was not unlawful. The declaration against the Department was set aside. The separate declaration against the non-appealing health authority was held to be erroneous in law. Lord Brandon and Lord Templeman dissented.
2. Capacity and parental authority. Lord Fraser and Lord Scarman held that Family Law Reform Act 1969, section 8, does not make 16 an absolute minimum age for effective consent. A child under 16 may consent when she has sufficient understanding and intelligence to understand fully the proposed treatment. Parental powers derive from duties owed for the child's benefit. They diminish as the child matures and yield when the child acquires capacity for the particular decision. Lord Bridge agreed with that reasoning.
3. Contraceptive advice and treatment. Lord Fraser held that a doctor should ordinarily seek parental involvement. A doctor may proceed confidentially only if satisfied that the girl understands the advice; cannot be persuaded to involve her parents; is very likely to begin or continue sexual intercourse regardless of treatment; is likely to suffer in physical or mental health without advice or treatment; and requires confidential advice or treatment in her best interests. Lord Scarman agreed and emphasised that capacity requires maturity to appreciate the moral, family, emotional and health implications.
4. Criminal law and public policy. Lord Fraser and Lord Scarman held that criminal liability depends on the doctor's intention. A doctor honestly exercising clinical judgment for the girl's health does not thereby aid or abet unlawful intercourse. Parental consent would not cure criminal conduct if the necessary guilty intention existed. Lord Bridge agreed that contraception could lawfully protect against an unwanted pregnancy where criminal sanctions were unlikely to prevent intercourse.
5. Dissents. Lord Brandon considered contraceptive advice and treatment for a girl under 16 necessarily contrary to public policy because it facilitated unlawful intercourse. Lord Templeman considered a girl under 16 incompetent to decide upon sex and contraception, and would generally have required parental approval except in emergencies, abandonment, abuse or comparable exceptional circumstances.

1. House of Lords: By a majority of three to two, allowed the Department's appeal and set aside the Court of Appeal's declaration that the guidance was unlawful. The separate declaration against the non-appealing health authority was held erroneous in law.
2. Court of Appeal: Eveleigh, Fox and Parker LJJ allowed Mrs Gillick's appeal at [1986] AC 112, 118A. They granted declarations that the guidance was contrary to law and that the health authority's doctors could not advise or treat her daughters without parental knowledge and consent, subject to the qualifications stated by that court.
3. High Court: Woolf J dismissed the action at [1984] QB 581.