Re R (A Minor) (Wardship: Consent to Treatment)
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Year | 1992 |
| Date | 1992 |
| Court | Court of Appeal (Civil Division) |
WAITE, J
COURT OF APPEAL
24 JULY 1991
LORD DONALDSON OF LYMINGTON, MR, STAUGHTON AND FARQUHARSON, L JJ
Child – medical treatment – child of 15 refusing treatment for mental illness – wardship – whether court should consent to medical treatment which might require compulsory medication.
Wardship – child needing treatment for mental illness – whether court could consent to treatment which might require compulsory medication.
The child, a girl, was aged 15. Her family had been known to social services for 12 years. The child had given rise to anxiety because of poor and sometimes violent parental relationships. In March 1991 she was received into voluntary care after a fight with her father. In May 1991 she was returned home at the mother's request, but immediately ran away. On 24 May 1991 an interim care order was made and she was placed in a children's home. Her mental condition gave cause for concern and a psychiatrist saw her and formed the opinion that she was ill enough to be the subject of an application under s 2 or s 3 of the Mental Health Act 1983. She absconded from the children's home on two occasions and attacked her parents. She was then placed in the psychiatric ward of a hospital. After a week she was transferred to an adolescent psychiatric unit. At the unit the child was given sedative medication with her consent when her condition warranted it. Towards the end of June 1991 a doctor wished to administer anti-psychotic medication. The child refused to consent to such medication. The local authority, as the body exercising legal responsibility for the child, refused to give consent for the drugs to be administered. The child was subsequently seen by a consultant child psychiatrist who formed the opinion that unless she continued with treatment at the unit her condition would deteriorate. The doctor also expressed the opinion that the child was of sufficient maturity and understanding to comprehend the treatment being recommended. The unit was not prepared to retain the child as a patient unless it was given authority to use appropriate medication to control her. If the child did not remain at the unit she would have to be admitted to a psychiatric ward at a general hospital where the doctors would have a statutory authority to administer medication. The local authority instituted wardship proceedings and the matter came before Waite, J. In the course of his evidence before the Judge, the consultant child psychiatrist stated that the child's mental condition was such that at
times the child had the capacity to make a rational and informed decision, but that at other times she did not have that capacity and that those were the times when medication was desirable. The Judge held that, following the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, if a child had achieved a sufficient understanding and intelligence to enable him or her to understand fully what was proposed and to be capable of making up his or her own mind on the matter, the parental rights, and the court's right, to give or refuse consent yielded to the child's right to make his or her own decisions. Further, the Judge held that this applied as much to a situation in which the child refused consent as to a case where the child was consenting. However, the Judge found that this child was a deeply disturbed and unhappy child who in making her decision was the victim of her own immaturity. He held that the child did not have the necessary capacity to decide to refuse to have the proposed medical treatment. He therefore gave his consent to the child undergoing medical treatment which might involve compulsory medication.
The Official Solicitor appealed on behalf of the child.
Held – dismissing the appeal: A child below the age of 16 could give a legally valid consent to medical treatment if and when he achieved a sufficient understanding and intelligence to enable him to understand fully what was proposed: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. In that case the child was not a ward of court and the hypothetical situation under consideration was one where a child with the requisite degree of understanding (a "Gillick competent" child) consented to medical treatment but the parent did not consent. It was decided that, in that situation, a doctor could lawfully treat the child. In the present case the child did not consent to the proposed treatment and had been made a ward of court. Further, the child was suffering from a fluctuating mental disability. In those circumstances the test of "Gillick competence" was not the appropriate test. The court in its wardship jurisdiction would decide whether or not to consent to the proposed treatment having regard to the welfare of the child as the paramount consideration. On the facts of this case the Judge was right to authorize medication.
Per curiam: When considering the wardship jurisdiction of the court, no assistance could be derived from Gillick's case as this was not in issue. The parental jurisdiction of the court in wardship was wider than that of parents. It was not derivative from the parent's rights and responsibilities but derived from the delegated performance of the duties of the Crown to protect its subjects, particularly children: see Re C (A Minor) (Wardship: Medical Treatment) (No 2) [1990] FCR 220 at p 223. In wardship the court had the right and duty to override a decision of the parents. Consequently, it could override decisions made by a "Gillick competent" child. Further (per Lord Donaldson of Lymington, MR) the court in the exercise of its statutory jurisdiction had power to override the decisions of a "Gillick competent" child as much as those of the parents or guardians.
Per Lord Donaldson of Lymington, MR: No doctor could be required to treat a child, whether by the court in its wardship jurisdiction, by the parents, by the child, or anyone else. The decision whether to treat was dependent upon the exercise of his professional judgment. But, save in an emergency, a doctor was not entitled to treat a patient without the consent of someone who was authorized to give that consent. In Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 it was held that a parent had a right to determine whether or not a child under 16 should have medical treatment. If the child was "Gillick competent" and consented to treatment, the parents did not cease to have an independent right to consent but they ceased to have a right to veto treatment. If, therefore, a child refused treatment, a parent could consent to treatment. A "Gillick competent" child did not have a right to refuse treatment as consent could be given by a person with parental rights or responsibilities. In holding that Gillick's case decided that a "Gillick competent" child had a right to refuse treatment, and that the parental right, and the court's right, to give or refuse consent yielded to
the child's right to make his or her own decisions, the Judge was in error.
AppealAppeal from Waite, J
FAMILY DIVISION9 July 1991
Charles Geekie for the local authority.
Miss V Gilbert for the father.
James Munby, QC for the child.
MR JUSTICE WAITE.This is a local authority's application in wardship for leave to place a 15 year old girl for treatment in an adolescent psychiatric unit and there to administer to her such medication, including anti-psychotic drugs, as the unit's doctors regard as necessary whether or not the minor consents to such medication or treatment.
The application, particularly so far as it involves the enforced medication, raises issues of considerable importance in the light of the decision of the House of Lords in Gillick v The West Norfolk Health Authority [1986] AC 112.
The child concerned was born on 15 September 1975. Her family had been known to social services for over 12 years. At an earlier stage of her life she had been on the local authority's at risk register as one who was thought to be a possible victim of emotional abuse. She was a child who gave rise to anxiety because of poor and sometimes violent parental relationships and difficulties generally in establishing boundaries in her life.
Those worries became more acute this year when, on 8 March 1991, she was received into voluntary care after a fight with her father. She claimed she felt that it was unsafe to stay in the house with him. She was placed first with emergency foster parents and then at a children's home maintained by the local authority.
While in care she asked not to see her father and showed some ambivalence about her wish to return to live in the care of either parent. Anxiety developed about her mental health. She seemed often flat and expressionless and resistant to being touched by anyone. She appeared to have experienced visual and auditory hallucinations and sometimes suicidal thoughts, so she was referred to Dr R, a consultant child psychiatrist.
Early in May 1991 the child's mother went to the children's home and cancelled the voluntary care under which she had been admitted. The child went back home but stayed only for a few minutes and then ran off. She was located and returned to the children's home, and then she was found by police on a bridge over the River Thames threatening suicide. In these worrying circumstances the local authority sought and was granted a five day place of safety order and the child was placed at a small children's home from which she absconded that night and was found by the police the following day at her parents' home.
An interim care order was granted in respect of her on 24 May and the child was persuaded to return to the general children's home. Her behaviour was, however,
increasingly disturbed. That very night of 24 May she had to be the subject of an emergency psychiatric assessment due to her increasingly paranoid and disturbed behaviour. The psychiatrist who saw her on that occasion was...
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