Re W (A Minor) (Medical Treatment: Court's Jurisdiction)

JurisdictionEngland & Wales
CourtFamily Division
Judgment Date12 May 1992
Date12 May 1992

THORPE, J

COURT OF APPEAL

10 JULY 1992

LORD DONALDSON OF LYMINGTON, MR, BALCOMBE AND NOLAN, L JJ

Child – medical treatment – child of 16 refusing treatment for anorexia nervosa – whether child of 16 was legally competent to refuse treatment – whether parent and court could give leave for treatment – powers of court – circumstances in which court would override wishes of child.

The child was a girl of 16 who was in the care of the local authority. She had a very unhappy childhood. Her parents had died when she was younger, and inappropriate treatment in a foster home led to her suffering depression in 1987. In June 1990 she began to suffer from anorexia nervosa. One of the clinical manifestations of that disease was a wish not to be cured, or at least not to be cured until the sufferer wished to cure herself. In January 1991 the child was admitted as an in-patient to a specialist adolescent unit. Her condition deteriorated. As a result, the local authority decided that it might become necessary to give the child medical treatment to which she did not consent. Having been granted leave under s 100(3) of the Children Act 1989, the local authority applied in January 1992 for orders under the inherent jurisdiction of the High Court (i) for leave to move the child to a named unit without the child's consent, and (ii) for leave to give the child medical treatment without her consent.

The matter came before Thorpe, J in April and May 1992. The child opposed the local authority's application. She was not refusing all treatment. She opposed proposals to move her to a unit specializing in the treatment of eating disorders which was attached to a hospital in London; and she rejected proposals for treatment beyond that being given at the unit where she was currently an in-patient.

By s 8 of the Family Law Reform Act 1969 it is provided:

"(1) The consent of a minor who has attained the age of 16 years to any ... medical ... treatment which, in the absence of consent would constitute a trespass to his person, shall be as effective as if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.

(3) Nothing in this section shall be construed as making ineffective any consent which

would have been effective if this section had not been enacted."

It was submitted on the child's behalf that, as she was 16, s 8 of the 1969 Act gave her power to refuse to consent to medical treatment and that the court could not override the child's wishes. The Judge rejected this submission. He found that the child was of sufficient understanding to make an informed decision. He adopted the view of Lord Donaldson of Lymington, MR in Re R (A Minor) (Wardship: Consent to Treatment)[1992] 2 FCR 229 at p 245B and 246H that if a child who was competent to consent to treatment refused treatment, the court had power to override the wishes of the child and consent to the treatment. He held that the discretionary decision to be exercised by the court necessitated a balance between the vehemently expressed views and feelings of the child and the harm which the child was at risk of suffering if her continued control of diet was prolonged into a chronic state affecting intellectual development and the development of reproductive organs. The Judge accepted the evidence of a consultant who had a pre-eminent reputation in the treatment of anorexic cases that, although it was a finely balanced decision, it was in the child's best interests that she be admitted to the hospital in London for treatment.

The child appealed.

When the appeal was first set down, the court was informed that the matter was not one of extreme urgency. The hearing began on 29 June. On 30 June the court was informed that the child had not taken solid food since 21 June and that, within a week she would be likely to suffer permanent damage to her brain and reproductive organs and a little later her life itself might be in danger. In those circumstances the court made an emergency order enabling her to be taken to and treated at a specialist hospital, notwithstanding the lack of consent on her part.

On the appeal against the decision of Thorpe, J:

Held – dismissing the appeal: (1) The inherent jurisdiction of the High Court was equally exercisable whether the child was or was not a ward of court: see Re L (An Infant [1968] P 119 and Re M and N (Wards: Publicity) [1990] FCR 395. The powers of the court in the exercise of that jurisdiction were theoretically limitless and they extended beyond the powers of a parent. But there were far-reaching limitations in principle on the exercise of that jurisdiction. Subject to any such limitation which might be applicable, in the exercise of the inherent jurisdiction the child's welfare was the court's paramount consideration: see s 1(1) of the Children Act 1989 and J v C [1970] AC 668.

(2) A child under 16 who had sufficient intelligence and understanding could consent to medical treatment notwithstanding the absence of the parents' consent: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. Such a child was referred to as being "Gillick competent" A child aged 16 or 17 was presumed to be Gillick competent and could consent to medical treatment in the absence of parental agreement: s 8 of the Family Law Reform Act 1969. However, that section did not provide that a child of 16 or 17 could refuse medical treatment, and if a child of that age refused treatment a parent or other person with parental responsibility could give consent to the treatment: s 8(3) of the 1969 Act. If a Gillick competent child under 16 refused treatment, a parent or other person with parental responsibility could give consent (observations of Lord Scarman in Gillick [1986] AC 112 at p 188H to 189B, apparently to the effect that such a child's refusal could not be overridden by a parent, considered and doubted). Section 8 of the 1969 Act did not operate to prevent parental consent remaining effective, as well in the case of a child aged 16 or 17 as in the case of a child under 16. The powers of the High Court exercising its inherent jurisdiction, being wider than those of a parent, enabled it to consent to a child receiving medical treatment, overriding the refusal of both the child and the parent. See per Lord Donaldson of Lymington, MR in Re R (A Minor) (Wardship: Consent to Treatment)[1992] 2 FCR 229 at pp 245 and 246.

(3) In the exercise of its inherent jurisdiction, the court would have regard to the views of a child of sufficient understanding to make an informed decision. The approach to be adopted was indicated in s 1 of the Children Act 1989. By subs (1) the child's welfare was the paramount consideration; and by subs (3) the court was required to have regard to specified matters including the ascertainable wishes and feelings of the child considered in the light of his age and understanding. In deciding what course would be in the best interests of the child's welfare, the court would recognize and give great weight to the views of a child of sufficient understanding to make an informed decision. If the child's welfare was threatened by a serious risk to his life or irreparable damage to his health, then the court should intervene and override the child's refusal of treatment: see for example, Re E (A Minor) (Wardship: Medical Treatment)[1992] 2 FCR 219. This was the position in the present case when the court was informed on 30 June that the child's condition had deteriorated rapidly and there was imminent danger to her life and of irreparable damage to her health. In those circumstances the court overrode the child's refusal of treatment and made an order enabling her to be treated.

(4) By ss 38(6), 43(8) and 44(7) of the Children Act 1989 a child of sufficient understanding to make an informed decision could refuse to submit to a medical or psychiatric examination or other assessment which a court had directed should be carried out, and by paras 4(4)(a) and 5(5)(a) of Sch 3 to the 1989 Act a requirement that a child should submit to a medical or psychiatric examination or treatment could not be included in a supervision order in respect of a child of sufficient understanding to make an informed decision unless the child consented to its decision. Those provisions reflected the philosophy of allowing such a child to make his own decisions. But (per Lord Donaldson of Lymington, MR) those statutory provisions concerned interim or supervision orders and did not impinge upon the jurisdiction of the court to make prohibited steps or specific issue orders under s 8 of the 1989 Act.

(5) In the present case, the Judge had found that the child was of sufficient understanding to make an informed decision. Before the Court of Appeal it was conceded that it was a feature of anorexia nervosa that it was capable of destroying the ability to make an informed choice. Therefore (per Lord Donaldson) it was doubtful whether the Judge was right to conclude that the child was of sufficient understanding to make an informed decision. But (per Lord Donaldson of Lymington, MR and Nolan, LJ) the Judge was right to order that, at the time the matter was before him, the child should be moved to the specialist hospital for treatment even though she did not consent.

Family Division

12 May 1992

Statutory provisions considered:

Children Act 1989, ss 1 and 100.

Family Law Reform Act 1969, s 8.

Case referred to:

R (A Minor) (Wardship: Consent to Treatment), Re [1992] Fam 11; [1992] 2 FCR 229.

Caroline Budden for the local authority.

Deborah Sawhney for the child.

Roderic Wood as amicus curiae.

The testamentary guardian (aunt) in person.

MR JUSTICE THORPE.

On 24 January 1992 the plaintiff local authority issued an originating summons pursuant to leave granted on an application under s 100(3) of the Children Act 1989. The...

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