Axon, R (on the application of) v Secretary of State for Health & Anor

A competent young person under 16 may receive confidential advice and treatment on contraception, sexually transmitted infections and abortion without parental knowledge or consent, provided the Gillick conditions are satisfied.

The medical professional must be satisfied that the young person understands all relevant aspects and implications, cannot be persuaded to involve the parents, is likely to suffer physically or mentally without the advice or treatment, and that provision is in the young person’s best interests. The approach applies to abortion despite its invasive and irreversible nature. The 2004 Guidance was lawful and did not unlawfully interfere with parental rights under article 8.

The claimant, a parent of two teenage daughters, sought judicial review of the Department of Health’s 2004 Guidance on confidential sexual and reproductive health advice and treatment for young people under 16.

She argued that medical professionals had to notify or consult parents before providing advice or treatment, except where disclosure would harm the child, and that the Guidance unlawfully misrepresented Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112 and infringed her rights under article 8 of the ECHR.

The central issues were whether parental notification was required, whether the Gillick conditions extended to abortion and sexually transmitted infections, and whether the Guidance was lawful.

1. Confidentiality. The claimant’s proposed qualification of the medical professional’s duty of confidence was rejected. The majority reasoning in Gillick permitted advice and treatment without parental knowledge or consent where the specified conditions were satisfied. A general parental notification requirement would be inconsistent with that decision and would risk deterring young people from seeking necessary care.
2. Scope of the Gillick conditions. The conditions were not confined to contraception. They could properly be adapted to advice and treatment concerning sexually transmitted infections and abortion. The greater complexity and seriousness of abortion reinforced the need for the professional to ensure that the young person understood all relevant medical, moral, family and other implications.
3. Applicable conditions. The professional had to be satisfied that the young person understood all aspects and implications of the advice; that attempts to persuade the young person to involve the parents had failed; that, where relevant, sexual intercourse or the relevant condition was likely to continue or arise; that physical or mental health was likely to suffer without advice or treatment; and that the young person’s best interests required confidential provision. The conditions were safeguards, not a licence to disregard parents’ wishes.
4. Lawfulness of the Guidance. Read as a whole and as guidance for medical professionals rather than as a statute, the 2004 Guidance accurately reflected the legal position. Its use of the expression good practice did not downgrade the Gillick conditions from necessary safeguards.
5. Article 8. A parent had no article 8 right to be notified of confidential sexual-health advice sought by a sufficiently mature young person. The child’s autonomy and confidentiality prevailed. In any event, the Guidance was justified and proportionate under article 8(2), having regard to the protection of health and the rights of others, and to the Executive’s margin of judgment in matters of social policy.
6. Disposition. The claim was dismissed. The claimant was not entitled to the declarations sought.