NHS Trust v X (In the matter of X (A Child) (No 2))

A Gillick competent child does not have an absolute right to refuse medical treatment. The court may override the decision of a competent minor where the child’s welfare requires it, although the child’s wishes and feelings must receive rigorous, context-specific consideration and normally carry greater weight with increasing age and maturity. Family Law Reform Act 1969, section 8, gives a 16- or 17-year-old legal capacity to consent to treatment for the purposes specified by the section; it does not confer an absolute veto. The Mental Capacity Act 2005 does not displace this common-law position. Applying the approach does not, of itself, breach Convention rights. Although anticipatory orders are available, a two-year rolling order was inappropriate where future clinical necessity was fact-sensitive and the evidence had not been fully tested.

X, a Jehovah’s Witness under 16 and suffering from serious sickle cell syndrome, was declared Gillick competent. She sought declarations that her refusal of blood transfusions was determinative, both before and after her sixteenth birthday. The NHS Trust sought a prospective order authorising transfusions during future medical crises.

The court had previously authorised an urgent transfusion in Re X [2020] EWHC 1630 (Fam) and another in Re X [2020] EWHC 3003 (Fam), without determining the legal challenge. The central issues were whether subsequent legal developments had displaced In re R (A Minor) (Wardship: Consent to Treatment) and In re W (A Minor) (Medical Treatment: Courts Jurisdiction), and whether a rolling order should be made.

1. Legal effect of a minor’s decision. The court followed In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64. A Gillick competent child, and a child aged 16 or 17, does not have an absolute or exclusive right to refuse medical treatment. The inherent jurisdiction permits the court to authorise treatment contrary to the child’s wishes where the child’s welfare requires it.
2. Welfare and wishes. The court must decide by reference to welfare and best interests. It must give anxious and rigorous consideration to the child’s ascertainable wishes and feelings. Their weight is case-specific and context-specific, increases with age and maturity, and includes the possible distress and humiliation caused by overriding them. Religious beliefs receive respect and neutrality, but remain subject to the child’s welfare.
3. Age and capacity. Section 8 of the Family Law Reform Act 1969 concerns the legal effect of consent and does not create an absolute right to refuse treatment. At 16, the issue of Gillick competence falls away and legal capacity is presumed, subject to proof of mental incapacity under sections 2(1) and 3(1) of the Mental Capacity Act 2005. The 2005 Act is not a complete code and does not oust the common law or the court’s protective jurisdiction. Gillick competence and mental capacity are conceptually distinct.
4. Convention rights. Articles 3, 8, 9 and 14 did not invalidate the domestic approach. Children are not in the same legal position as autonomous adults, and preserving the lives of children until adulthood is a legitimate protective aim. The Article 5 issue was not decided; the judge inclined to the view that urgent life-saving treatment might fall within the recognised medical-treatment carve-out.
5. Prospective order. The court had jurisdiction to make a contingent or anticipatory order. It nevertheless refused the requested two-year rolling order. The necessity for transfusion would depend on the precise future crisis, clinical judgment and evidence then available. A rolling order risked excessive medical paternalism, religious stereotyping and reliance on evidence which X had not had a proper opportunity to test.
6. X’s application was dismissed. The leapfrog certificate and permission to appeal were refused.

The judgment was a first-instance decision. It records earlier orders in the same proceedings:

1. High Court (Family Division) — an urgent transfusion order was made in Re X [2020] EWHC 1630 (Fam).
2. High Court (Family Division) — a further transfusion order was made in Re X [2020] EWHC 3003 (Fam), with the legal issues reserved for fuller argument.