The recent case of An NHS Trust v X [2021] EWHC 65 (Fam) concerned a teenage Jehovah’s Witness who required on-going blood transfusions. In the case, Sir James Munby, the ex-President of the Family Division, considered whether a child’s refusal to treatment can be overridden by the courts. The case follows on from the recent case Bell & Anor v The Tavistock And Portman NHS Foundation Trust[2020] EWHC 3274 (Admin) (1 December 2020), which considered whether children had Gillick competence to make decisions about puberty blockers.

It has been commonly understood through case law that, when a child under 18 years old has refused treatment, a court could override that child’s refusal. In most cases the court usually did so. Some have started to question this approach. The court has, in this case, upheld the law.

Previous case law

Sir James Munby stated: “The court, in the exercise of its inherent “parens patriae” or wardship jurisdiction, can in an appropriate case – typically thought of as being a case where the consequence of the child's decision is likely to be serious risk to health or death – overrule the child's decision, either, as the case may be, vetoing some procedure to which the child has consented or directing that the child should undergo some procedure to which the child is objecting. That conventional wisdom is founded on the decisions of the Court of Appeal in In re R (A Minor) (Wardship: Consent to Treatment) [1992] and in In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993].”

Sir James quoted at length from these two cases, explaining he could not simply reject the law they set out “merely because society’s views have changed, even assuming that they have”. He noted that such a change would be a matter for Parliament, not the courts.

Family Law Reform Act

Sir James Munby looked, in particular, at section 8 of the FLRA, which permits ‘consent by persons over 16 to surgical, medical and dental treatment’ taking the view that this Act does not provide a 16 year old with an absolute right to determine whether they receive medical treatment. Instead, s8 of the FLRA enabled the patient to give consent as if there were an adult to such treatment for the limited purpose of protecting their medical practitioner from legal prosecution or from any claim in trespass. Importantly, whilst the FLRA afforded the patient the ability to consent to treatment as an adult, the fact remained that the patient was still a minor in the eyes of the wider law and their refusal to give consent could still be overridden by the court.

Mental Capacity Act

Sir James Munby also considered the role of the Mental Capacity Act 2005 in this issue. He noted that, in general, the MCA extends to those aged 16 or over, which reflects the recommendation in the Law Commission’s 1995 Report. He points out, however, that there are exceptions to this. For example, the Court of Protection cannot make a statutory will, or an advance decision or appoint and LPA until P has reached 18 years old. The reasons for these limitations were explained in the Law Commission’s report as follows: "[t]here would be little point in our recommending that an anticipatory refusal of treatment can be made by persons under the age of eighteen since it is now settled if controversial law that the court in its exercise of its statutory and/or inherent jurisdiction (and possibly also any person who has parental responsibility) may overrule the refusal of a minor, competent or not, to accept medical treatment."

In short, the MCA does not prevent a court from overriding a child’s decision.

Decision making

Whilst a child’s decision can be overridden by the court, their decision must still be taken into account when the court makes a decision on their behalf. Sir James Munby carefully sets out that both section 1(3)(a) of the Children Act 1989 and section 4(6)(a) of the Mental Capacity Act 2005 require the court to "have regard to" (in the one case) or to "consider" (in the other) the person's wishes and feelings.

As with an adult, any welfare analysis of best interests by the Court for a Gillick competent child or a young person over 16 years who has capacity must take account of:

1. the person's wishes and feelings; and 
2. the possible impact on P of his/her wishes and feelings are not being given effect to.
   

No doubt, if a child is Gillick competent, their wishes, feelings and decision will carry significantly more weight than those of a child who is not Gillick competent, but that does not mean the Gillick competent child’s decision is determinative in all circumstances. (The Court did not address the issue of whether those with parental responsibility could overrule a minor who had capacity or competence).

Gillick competence v capacity

Interestingly, the court in the Tavistock case in December 2020 approached the issue of capacity/competence in minors on the basis that Gillick competence is equivalent to capacity as it is described in the MCA. Sir James Munby disagreed with this approach, saying “both [are] historically and conceptually quite distinct.” In his view the tests of capacity and of Gillick competence have nothing very obvious in common, not least because they are rooted in different areas of scientific knowledge and understanding. Sir James Munby considered that capacity, or, more precisely, lack of capacity as described in s2(1) of the 2005 Act is referred to as "impairment of, or a disturbance in the functioning of, the mind or brain", whereas Gillick competence, in contrast, is tied to the normal development over time of the typical child and teenager. Sir James Munby also reviewed arguments made in respect of Article 2, 3, 5, 8, 9 and 14 of the Human Rights Act, but we do not cover those here as the Judge ruled the relevant judgments did not alter his view. The case is to be appealed although the Judge refused permission for a “leap frog” appeal straight to the Supreme Court.

What to take away

In relation to medical treatment, neither the decision of a Gillick competent child nor the decision of a young person over the age of 16 is determinative in all circumstances. Such a refusal can be overridden by the courts. The courts would of course need to take into account the child’s refusal when making that decision.

There remains a distinction between children under the age of 16 and those aged between 17 -18 years old:

• Until the age of 16 - the relevant test remains whether the child is Gillick competent;
• Once the child reaches the age of 16 - the issue of Gillick competence falls away, and the child is assumed to have legal capacity in accordance with s.8 Family Law Reform Act 1969, unless (iii) the child is shown to lack mental capacity as defined in ss. 2(1) and 3(1) Mental Capacity Act 2005.
• Even if the child is competent or the young person has capacity the Court can override their refusals.

How Capsticks can help

We have a specialist health and social care advisory team of over 20 specialist lawyers, advising clients across the country on all issues relating to consent, capacity and medical treatment for both adults and children. If you would like any support in relation to your policies and process, or with a particular patient please do not hesitate to get in touch with one of our team, to include Charlotte Radcliffe, Francis Lyons, Tracey Lucas and Adam Hartrick if you would like to understand the impact of this decision on the care you deliver.