R (Axon) v Secretary of State for Health

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeThe Honourable Mr Justice Silber:
Judgment Date23 Jan 2006
Neutral Citation[2006] EWHC 37 (Admin)
Docket NumberCase No: CO/5307/2004

[2006] EWHC 37 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISON

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Silber

Case No: CO/5307/2004

Between:
The Queen On The Application Of Sue Axon
Claimant
and
The Secretary Of State For Health
Defendant
The Family Planning Association
Intervener
and

Philip Havers QC and Peter Duckworth (instructed by Omerods of Croydon) for the Claimant

Philip Sales and Jason Coppel (instructed by Office of the Solicitor for the Department of Health) for the Defendant

Nathalie Lieven and David Blundell (instructed by Leigh Day and Co) for the Intervener

Mr. Justice Silber:

(This Summary forms no part of the judgment)

1

This is an application by Sue Axon for declarations that (a) a doctor is under no obligation to keep confidential advice and treatment which he proposes to provide in respect of contraception, sexually transmitted infections and abortion and must therefore not provide such advice and treatment without the parents' knowledge unless to do so would or might prejudice the child's physical or mental health so that it is in the child's best interest not to do so. The claimant's primary case is that this represents the nature and scope of the doctor's duty of confidence in respect of all the above treatments. However, the claimant's alternative case is that, at the very least, this is his duty in respect of the provision of advice and treatment in respect of abortion and that (b) a document published by the Department of Health entitled "Best Practice Guidance for Doctors and other Health Professionals on the provision of Advice and Treatment to Young People under 16 on Contraception, Sexual and Reproductive Health" ("the 2004 Guidance") is unlawful.

2

In paragraphs 1–3 of the judgment, it is pointed out that this application is concerned with the position in which a young person under the age of 16 wishes to obtain advice and treatment on contraception, sexually transmitted illnesses and abortions but who cannot be persuaded to notify his or her parents or to let the medical professional inform his or her parents that their child is seeking advice or treatment on sexual matters. There is nothing in this judgment, which is intended to encourage young people to seek or to obtain advice or treatment on any sexual matters without first informing their parents and discussing matters with them. Indeed, everybody must hope that all young people will discuss these sexual matters with their parents at the earliest opportunity. After all in the overwhelming majority of cases, the best judges of a young person's welfare are his or her parents.

3

Paragraphs 4 to 8 of the judgment are devoted to explaining the claim while paragraphs 9 to 13 of the judgment explain what was decided by the majority of the House of Lords in Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112. Paragraph 13 sets out a summary of the most relevant comments. The interests of the parties in this application and the relevant statutory provisions are set out in paragraphs 15 to 18 and 19 to 21 of the judgment respectively.

4

The terms of the 2004 Guidance are set out in paragraphs 22 to 24 of the judgment and the issues are described in paragraphs 26 to 29 of the judgment. The evidence and the overseas authorities are commented upon in paragraphs 30 to 38 of the judgment,

5

Paragraphs 39 to 82 of the judgment are devoted to considering the claim that that the medical professional was under no obligation to keep confidential advice and treatment which he proposed to provide in respect of contraception, sexually transmitted infections and abortion and must, therefore, not provide such advice and treatment without the parent's knowledge unless to do so would or might prejudice a child's physical or mental health so that it is in the child's best interest to do so.

6

Paragraphs 83 to 91 of the judgment are devoted to the alternative claim to that set out in paragraph 5 of this summary that the claimant is entitled to a declaration in the form of that declaration but only in respect of the provision of proposed advice and treatment concerning abortion.

7

Paragraphs 93 to 96 of the judgment deal with the circumstances in which a medical professional can provide advice and treatment on sexual matters to a young person without parental knowledge and consent. These principles are summarised at paragraph 154 of the judgment.

8

Paragraphs 97 to 117 of the judgment are concerned with the contentions that the 2004 Guidance is unlawful.

9

Paragraphs 118 to 152 of the judgment are devoted to considering if a parent's article 8 rights are being infringed by the 2004 Guidance.

10

he conclusions of the judgment are set out in paragraphs 153 to 155 of the judgment and the circumstances in which a medical professional can provide advice and treatment on sexual matters to a young person without parental knowledge and consent are set out in paragraph 154 of the judgment. The claim has to be dismissed as the claimant is not entitled

to the relief claimed, particularly in the light of the decision in Gillick, by which I am bound.

The Honourable Mr Justice Silber:

I. Introduction

1

Any person over the age of 16 years can give a valid consent to surgical or medical treatment (section 8(3) of the Family Law Reform Act 1969). Normally if it is proposed to provide surgical or medical treatment to a young person under the age of 16 years, the consent of that person's parent or guardian would be needed before the treatment could be given. This application is concerned with the position of a young person under the age of 16 who wishes to obtain advice and treatment on contraception, sexually transmitted illnesses and abortions but who cannot be persuaded to notify his or her parents or to let the medical professional inform his or her parents that their child is seeking advice or treatment on sexual matters. In particular, it raises the issue of how medical professionals (which is the term which I will use to describe doctors, nurses and other qualified medical staff who regularly now provide medical service on these matters) should advise and treat young people, who seek advice and treatment on sexual matters including abortions, contraception, sexual and reproductive health (which for convenience sake I will refer to collectively as "sexual matters") and who are capable of understanding the advice and its implications. In other words, this application is dealing with what everybody must regard as the very unfortunate situation in which a young person seeks or needs advice and treatment on contraception, sexually transmissible diseases or abortion but who is not prepared either to inform his or her parents or for his or her parents to be informed by the medical professional.

2

I stress that there is nothing in this judgment, which is intended to encourage young people to seek or to obtain advice or treatment on any sexual matters without first informing their parents and discussing matters with them. Indeed, everybody must hope that all young people will discuss these sexual matters with their parents at the earliest opportunity. After all, the best judges of a young person's welfare are almost invariably his or her parents.

3

As I will explain, the evidence shows that there is a realistic prospect that without being assured that the medical professionals would not inform their parents, some young people would not seek advice on sexual matters as they would not be prepared either to inform their parents themselves or to allow the medical professional to do so.

II. The Claim

4

On 29 July 2004, the Department of Health published a document, which was entitled "Best Practice Guidance for Doctors and Other Health Professionals on the Provision of Advice and Treatment to Young People under Sixteen on Contraception, Sexual and Reproductive Health" ("the 2004 Guidance"). The lawfulness of the 2004 Guidance is in issue on this application.

5

The main issue raised on this application is whether and in what circumstances a health professional can provide advice and treatment on sexual matters to young people without their parents first being notified after the young person concerned has refused either to inform his or her parents themselves or to allow the medical professional to do so. The Secretary of State for Health ("the Secretary of State") maintains that a medical professional can provide such advice and treatment on sexual matters for young people under the age of sixteen years without the knowledge or consent of their parents provided that certain important and stringent conditions laid down by the House of Lords had been complied with. That is also the stance of the intervener on this application, which is the Family Planning Association ("Fpa"), which together with the Secretary of State submits that the 2004 Guidance is lawful.

6

Ms Susan Axon ("the claimant") contends that the 2004 Guidance is unlawful and that the medical professional:-

"is under no obligation to keep confidential advice and treatment which he proposes to provide in respect of contraception, sexually transmitted infections and abortion and the health professional must, therefore, not provide such advice and treatment without the parent's knowledge unless to do so might prejudice the child's physical or mental health so that it is in the child's best interest not to do so. The Claimant's primary case is that this representsthe position in respect of all the above treatments but at the very least, is his duty in respect of the provision of advice and treatment in respect of abortion"

7

...

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    ...access to familyplanning without parental involvement), see also R (On the Application of Axon) vSecretary of Statefor Health [2006] EWHC 37 (Admin), [2006] 1 FCR 175; Jepson vChief Constable of West MerciaConstabulary [2003] EWHC 3318 (Admin) (attempt to force the prosecution of doctors wh......
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