Gillick v West Norfolk and Wisbech Area Health Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVELEIGH,LORD JUSTICE PARKER,LORD JUSTICE FOX |
| Judgment Date | 20 December 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J1220-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0494 |
| Date | 20 December 1984 |
and
[1984] EWCA Civ J1220-3
Lord Justice Eveleigh
Lord Justice Fox
Lord Justice Parker
84/0494
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CAMBRIDGE DISTRICT REGISTRY
Royal Courts of Justice
MR G.H.WRIGHT, Q.C., MR D.A.POOLE and MR P.J. FIELD, instructed by Messrs. Ollard & Bentley (March), appeared for the Appellant (Plaintiff).
MR J.G.M.LAWS, instructed by The Treasury Solicitor, appeared for the Respondents (Defendants).
I will invite Lord Justice Parker to deliver the first judgment.
By Section 1 of the National Health Service (Family Planning) Act 1967, Local Health Authorities in England and Wales were empowered, with the Approval of the Minister of Health and to such extent as he might direct, to make arrangements for the giving of advice on contraception, the medical examination of persons seeking advice on contraception for the purpose of determining what advice to give and the supply of contraceptive substances and contraceptive applicances. This was, so far as is known, the first occasion upon which Parliament had made any provision for what may be described simply as contraceptive advice and treatment. The 1967 Act was repealed by the National Health Service Reorganisation Act 1973, which Act, by Section 4, replaced the power of Local Health Authorities to provide for such advice and treatment with a duty upon the Secretary of State to do so. Section 4 has now been replaced in like terms by Section 5 (1) (b) of the National Health Service Act 1967 which provides that it is the Secretary of State's duty "to arrange, to such extent as he considers necessary to meet all reasonable requirements in England and Wales, for the giving of advice on contraception, the medical examination of persons seeking advice on contraception, the treatment of such persons and the supply of contraceptive substances and appliances."
It is to be noted in passing that neither the original power of the Local Health Authority nor the subsequent duty of the Secretary of State to provide for contraceptive advice and treatment was subject to any limitation upon the age of the persons to whom such service was to be accorded.
In pursuance of his duty under Section 5 (1) (b), the Secretary of State made arrangements, and in May 1974 the Department of Health and Social Security, who are the second Respondents in this appeal, issued an explanatory circular concerning such arrangements to which was attached a memorandum of guidance, Section G of which was entitled "The Young". The relevant parts of it are set out in full in the report of the judgment of Woolf J. presently under appeal in 1983 3. W.L.R. 859 at 862–3. In view of that and the fact that Section G was amended in 1980 it is unnecessary to do more here than mention that it states:
(1) That in the light of the fact that there were 1490 births and 2804—induced abortions among girls under 16 there was a clear need for contraceptive services to be available for and accessible to young people at risk of pregnancy irrespective of age.
(2) That it was for the doctor to decide whether to provide contraceptive advice and treatment.
(3) That the Medical Defence Union had advised that the parents of a child, of whatever age, should not be contacted by any staff without his or her permission.
The memorandum of guidance with its plain acceptance, if not encouragement of the idea that contraceptive advice and treatment could be given to girls, not merely under 16 but well under 16, without the consent or even the knowledge of parents, not unnaturally provoked much concern and in December 1980 the Department issued a Notice containing Section G, the terms of which are directly challenged in the Appeal and which I therefore quote in full: "Clinic sessions should be available for people of all ages, but it may be helpful to make separate, less formal arrangements for young people. The staff should be experienced in dealing with young people and their problems.
"There is widespread concern about counselling and treatment for children under 16. Special care is needed not to undermine parental responsibility and family stability. The Department would therefore hope that in any case where a doctor or other professional worker is approached by a person under the age of 16 for advice on these matters, the doctor, or other professional, will always seek to persuade the child to involve the parent or guardian (or other person in loco parentis) at the earliest stage of consultation, and will proceed from the assumption that it would be most unusual to provide advice about contraception without parental consent.
"It is, however, widely accepted that consultations between doctors and patients are confidential, and the Department recognises the importance which doctors and patients attach to this principle. It is a principle which applies also to the other professions concerned. To abandon this principle for children under 16 might cause some not to seek professional advice at all. They could then be exposed to the immediate risks of pregnancy and of sexually transmitted disease, as well as other long-term physical, psychological and emotional consequences which are equally a threat to stable family life. This would apply particularly to young people whose parents are, for example, unconcerned, entirely unresponsive, or grossly disturbed. Some of these young people are away from their parents and in the care of local authorities or voluntary organisations standing in loco parentis.
"The Department realises that in such exceptional cases the nature of any counselling must be a matter for the doctor or other professional worker concerned and that the decision whether or not to prescribe contraception must be for the clinical judgment of a doctor."
This revised text is, no doubt, less forthright than its predecessor in its acceptance of the position that the young can be advised and treated without the knowledge or consent of their parents, but that position is plainly still accepted.
As a result of the issue of the revised text Mrs. Gillick, the Appellant, a Roman Catholic who then had four, but now has five, daughters under the age of 16, wrote on 21st January 1981 to the Local Health Authority in the following terms: "Concerning the new D.H.S.S. Guidelines on the contraceptive and abortion treatment of children under both the legal and medical age of consent, without the knowledge or consent of the parents, can I please ask you for a written assurance that in no circumstances whatsoever will any of my daughters (Beatrice, Hannah, Jessie & Sarah) be given contraceptive or abortion treatment whilst they are under sixteen, in any of the Family Planning Clinics under your control, without my prior knowledge, and irrefutable evidence of my consent? Also, should any of them seek advice in them, can I have your assurance that I would be automatically contacted in the interests of my childrens' safety and welfare?
"If you are in any doubt about giving me such assurances, can I please ask you to seek legal medical advice.
"Yours faithfully, MRS. VICTORIA GILLICK"
She received the following reply on 27th January 1931: "Thank you for your letter of 21st January addressed to the Chairman and he has asked me to reply to you on his behalf.
"I enclose for your information a copy of the official guidance issued in May 1980, together with a copy of a recent press statemen made by the Minister of Health on this important matter. You will see that the Minister emphasises that it would be most unusual to provide advice about contraception without parental consent, but it does go on to say that the final decision must be for the doctor's clinical judgement. We would expect our doctors to work within these guidelines but, as the Minister has stated, the final decision in these matters must be one of clinical judgement."
This did not satisfy Mrs. Gillick and further correspondence ensued until on the 3rd March 1981 Mrs. Gillick wrote a final letter making her position clear as follows: " I formally FORBID any medical staff employed by Norfolk A.H.A. to give any contraception or abortion advice or treatment whatsoever to my four daughters, while they are under 16 years, without my consent.
Will you please acknowledge this letter and agree wholeheartedly to advise your doctors etc. to abide by my forbidding."
This produced no change in attitude and eventually on 5th August 1982, Mrs Gillick commenced proceedings against both the Local Health Authority and the Department. By her Specially indorsed writ she claimed two declarations, the first against the Local Health Authority and the Department and the second against the Local Authority only. The declarations sought are: "(i) a declaration against the First Defendants and the Second Defendants on a true construction of the said Notice and in the events which have happened, including and in particular the publication and the circulation of the said Notice, the said Notice has no authority in law and gives advice which is unlawful and wrong, and which adversely affects or which may adversely affect the welfare of the Plaintiff's said children, and/or the rights of the Plaintiff as parent and custodian of the said children, and/or the ability of the Plaintiff properly and effectively to discharge her duties as such parent and custodian; (ii) a declaration against the First Defendants that no doctor or other professional person employed by the...
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