A (A Child)

A child under 16 may consent to medical treatment where she has sufficient understanding and intelligence to understand what it involves. The primary question is capacity, not whether the decision accords with her best interests. Capacity requires understanding of the available options, their implications and material risks, and the decision must be the child’s own, rather than the product of coercion or undue influence. Once capacity is established, the child is entitled to decide whether to continue or terminate the pregnancy.

An NHS Trust sought declaratory relief concerning a 13-year-old child who was more than 21 weeks pregnant. The Trust asked the court to determine whether she had capacity to consent to continuing or terminating the pregnancy. If she lacked capacity, the Trust sought a declaration that termination was in her interests. If she had capacity, it sought a declaration confirming that position and protecting the Trust and clinicians from later criticism.

The court heard evidence from a consultant child and adolescent psychiatrist following an assessment of the child’s understanding, the available options, their risks and the independence of her decision.

1. Capacity. Applying the principle in Gillick v West Norfolk and Wisbech Area Health Authority, [1986] 1 FLR 224, a person under 16 has legal capacity to consent to treatment if she has sufficient understanding and intelligence to know what it involves.
2. The relevant decision was whether A understood the options of continuing the pregnancy or terminating it, together with the implications and risks of each. The psychiatric evidence established that she understood the essential features of both courses, including the consequences of termination and the possibility of complications.
3. A’s decision was her own. The evidence did not indicate coercion, influence by adult family members, acute mental illness or distress affecting her decision-making.
4. Best interests did not determine the primary capacity question. Once A’s capacity was established, it was for her to decide what she wished to do. The court therefore made a declaration that she had sufficient understanding and intelligence to make that decision. Her present intention was to terminate the pregnancy, but the decision remained hers.
5. The court also made a reporting restriction order because identifying A would be contrary to her best interests. The order preserved the ability of affected persons, including press organisations, to apply for variation on notice.