An NHS Trust & Anor v A & Ors

A child’s capacity to consent to medical treatment is decision-specific. A child under 16 is competent where he or she has sufficient maturity and intelligence to understand the treatment, its likely effects and risks, the consequences of refusing it, and can retain and weigh that information. The court decides competence as a question of fact, taking expert evidence into account but evaluating it alongside all other evidence.

A competent child’s refusal does not prevent the court authorising treatment under its inherent jurisdiction where the child’s welfare requires it. In determining best interests, the child’s wishes and feelings are important, with their weight increasing with age and maturity, but they are not necessarily decisive.

An NHS Trust sought declarations concerning the medical treatment of a 14-year-old boy, J, who had been diagnosed HIV positive and whose parents rejected the diagnosis and opposed antiretroviral therapy. The local authority also sought a care order. By the end of the hearing, the Trust sought declarations that treatment, psychotherapy and peer support were in J’s best interests rather than a mandatory order requiring treatment.

The recent deterioration in J’s health and the death of his father meant that the court deferred the care and welfare-order issues. The court therefore determined whether J was Gillick competent to decide about antiretroviral therapy, psychotherapy and peer support, and whether declarations concerning those matters should be made.

1. Gillick competence. Applying Gillick v West Norfolk and Wisbech Area Health Authority and DHSS [1986] AC 112, a child under 16 is competent to consent to treatment if he or she understands its nature and implications, including likely effects and side effects; understands the consequences of not receiving it; retains the information long enough to decide; and has sufficient intelligence and maturity to weigh it and reach a decision. Competence is decision-specific and is a question of fact for the judge. Expert evidence is important, but the court must assess it with the other evidence, as explained in A County Council v K D & L [2005] EWHC 144 Fam.
2. J was intelligent, articulate and had received extensive information. Nevertheless, he did not accept that his HIV diagnosis was true because he considered the laboratory result insufficient proof. That meant he did not fully understand the consequences of refusing antiretroviral therapy and could not properly weigh the advantages and disadvantages. He was therefore not Gillick competent to decide whether to take ART at that time.
3. The position differed for monitoring, blood tests, psychotherapy and peer support. Those decisions were less complex and did not depend on J accepting the diagnosis. He understood them and agreed to them. He was therefore Gillick competent in relation to those matters.
4. A finding of competence would not make a refusal determinative. Under the principle in Re W (A minor) (medical treatment: courts jurisdiction) [1993] Fam 64, the court may, under its inherent jurisdiction, authorise treatment in the child’s best interests, although the child’s wishes and feelings remain important.
5. The medical evidence established that untreated HIV was likely to cause serious illness and premature death, while the risks of ART, including side effects, were substantially less. Applying section 1(1) of the Children Act 1989, J’s welfare was paramount. His physical needs and the risks of untreated HIV outweighed the risks of side effects, emotional harm from differing from his parents, and his expressed wishes. The court declared that it was in J’s best interests to start ART as quickly as possible, and expressed the same view concerning psychotherapy and peer support.
6. The issues concerning the threshold under section 31, the appropriate care or supervision order and the proposed contract of expectations were adjourned. The interim care order continued, with liberty to apply.

First-instance decision. The judgment records earlier hearings and orders in the same proceedings, but no appellate decision is stated.