A NHS Trust v X
Summary[1]
This case is about whether X, a young woman declared to be Gillick competent and "mature and wise beyond her years", should be afforded the exclusive right to decide her own medical care in the same way as her peers aged 18 years and older
X, who was 15 at the time of judgment, is a Jehovah's Witness. She suffers from serious sickle cell syndrome. At times this results in a crisis, when the view of her treating clinicians is that blood transfusion is necessary.
Her case is also the latest consideration the courts have given to the question of when the refusal of medical treatment by a child under the age of 18 may be determinative.
The Trust had brought her case to court in May 2020, seeking authorisation for transfusion notwithstanding her objections, which was granted. In October 2020 a further crisis ensued, and the matter returned to court. The Trust was now seeking not only an order authorizing transfusion in this case, but a 'rolling order' which would authorise transfusions as and when needed until X is 18. At that hearing counsel for X raised the question of whether, as a Gillick competent child of nearly 16, her refusal of treatment should be determinative. The court authorized treatment in the circumstances of medical crisis, but set the matter down for full argument.
Gillick competence
It was common ground that X was Gillick competent, and so the judgment does not descend into detailed analysis of the concept. However, Sir James Munby did make two important observations:
- On the relationship between Gillick competence and s. 8, drawing on the analysis of Lord Donaldson in In re R [1992] Fam 11 and In re W [1993] Fam 64: in medical treatment cases the analysis is '(1) Until the child reaches the age of 16 the relevant inquiry is as to whether the child is Gillick competent. (2) Once the child reaches the age of 16: (i) the issue of Gillick competence falls away, and (ii) the child is assumed to have legal capacity in accordance with section 8, unless (iii) the child is shown to lack mental capacity as defined in sections 2(1) and 3(1) of the Mental Capacity Act 2005' (at [57]);
- On the relationship between Gillick competence and capacity under the MCA 2005: the tests have "nothing obvious in common, not least because they are rooted in different areas of scientific knowledge and understanding" (para 73) ; there is no obvious read-over between the two, save that it is difficult to see how a child who lacks capacity in the MCA sense would achieve Gillick competence (para 74). In this regard, Sir James disagreed with the suggestion in Re S and repeated in Bell v Tavistock that it is appropriate and helpful when considering Gillick competence to read across and borrow from the concepts and language in the MCA: 'its premise is that Gillick competence is in some way related or even analogous to capacity in the sense in which the expression is used in the 2005 Act. It is not; the two are, as I have said, both historically and conceptually quite distinct" (at [75]).
Compatibility with ECHR
The judgment then goes on to consider whether that approach is compatible with the European Convention of Human Rights. In short terms, the answer given is 'yes':
- Article 2: even if it was correct that Article 2 was not engaged, this did not prevent 'the preservation of life' being a factor that the State can consider when evaluating whether other rights are engaged;
- Article 3: assuming that it were the case that imposing medical treatment on an adult who did not wish it would amount to a breach of Article 3, the case is different where treatment of a child – even a Gillick competent child – is being considered. This is because of the strong arguments in favour of securing the child's future autonomy. The need to balance autonomy and the need to protect the child and support them to survive into adulthood is recognized in various provisions of the UN Convention on the Rights of the Child (at para 119]) and nothing in the Strasbourg jurisprudence requires a recognition that a child – even a Gillick competent child – is autonomous in the way an adult is (para 120).
- Article 5: on the facts of the case, Article 5 did not arise. No order had been made for X to be restrained or prevented from leaving hospital, and she did not in fact seek to do so. The difficult question as to how a Gillick competent child could be 'of unsound mind' did not therefore fall to be answered, but Sir James expressed the view that the solution is to be found in the 'carve out' recognized in R (Ferreira) v Inner South London Senior Coroner [2017] EWCA Civ 31.
- Articles 8 and 9: the analysis in relation to Article 3 applied to the argument that there was any breach of Articles 8 or 9. In fact, given that those rights are qualified rights, the argument that there was no breach where the intention is to preserve the lives of children until adulthood (which Sir James recognised as a legitimate aim at para 134) was all the stronger.
- Article 14: any differential treatment on the basis of age was justified, and no breach of Article 14 ensued. The reason for treating children differently was not a matter of administrative convenience, but the protection of children (see para 152).
Sir James then considered the submission that times have changed and views as to the proper balance between medical paternalism and patient autonomy have altered. He agreed that "[o]f course, a family court cannot be blind to the changes in society's views and values which are such a striking feature of modern life, and this is well recognised in the authorities" (paragraph 159). Similarly, the common law is of course capable of moving with the times. However, the court could not simply reject the law as set out in Re R and Re W:
- At the end of this lengthy analysis, my clear and firm conclusion is that the learning in In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64 emerges unscathed from Mr Brady's attack. The change for which he contends is a matter for Parliament, not the courts.
The rolling order
The second question which arose for decision was whether to make the orders sought by the Trust.
Having found against X on the question of whether the court could make an order requiring her to be treated against her competent/capacitous will, Sir James was not persuaded that he should make the rolling order sought by the Trust. He was satisfied that it was possible to make such an order: "I have no doubt that the court has jurisdiction to make the kind of contingent, anticipatory or prospective order" which was sought (para 165]) but the real question was whether the court should.
Four submissions were made in support of the overall submission that an order should not be made, Sir James identifying that he agreed with the force of the submission, if not the detail of the points. Those four submissions were: (1) determining whether or not a medical treatment is required is highly fact specific, particularly in the context of whether blood transfusions are required; (2) granting a rolling order would run the risk of privileging medical paternalism over judicial protection; (3) there was a risk in a case such as X's of discrimination and religious stereotyping, based on the erroneous assumption that blood transfusions are always necessary whenever recommended by a clinician and that a patient who is a Jehovah's Witnesses is always wrong to refuse such a procedure; and (4) X had not yet had the opportunity to test the medical evidence rigorously, which would be a pre-requisite if there was to be a rolling order lasting two years.
Taken in the round, Sir James agreed that there should be no rolling order.
Comment
This case is a helpful restatement of principles, and a firm indication that if the law in relation to 16 and 17 year olds is to change that is a matter for parliament.
The clarification made by Sir James as to the nature of s. 8 ("for the purposes of section 8 we are concerned only with legal capacity; the effect of the statute, in relation to its specific subject matter (medical treatment) is, as it were, to reduce the age of majority from 18 to 16 – that, and no more. Section 8 is not concerned with and does not operate so as to deem the child to have mental capacity" is welcome. Similarly, the observation at paragraph 139 that "many attempts have been made to demonstrate that purely common law rules, found only in a mass of case law, fall foul' of the ECHR requirement of being 'prescribed by law" but "I am not aware of any that have succeeded" is a helpful reminder, and not only in this area of the law.
More controversial is the open question as to how Article 5 operates in cases of this nature. As Sir James recognized, the application of the Ferreira carve out is potentially problematic: a Gillick competent child objecting to treatment is not in the same situation as the patient in Ferreira. The child is not incapable of giving consent: the issue is rather that they are not consenting. Although not requiring determination on the facts of this case, it is readily foreseeable that the issue may arise in the future: it is much less clear what the answer is.
Likewise, the 'pragmatic' approach adopted to the relationship between competence/capacity in children over the age of 16 – while making for a clear approach for practitioners to adopt – seems likely to attract further academic commentary, whether or not savouring "of the Thomist schoolmen" (at [71]).
Having determined that the court has the power to make a 'rolling' order but (rightly, given the facts of the case) deciding it was inappropriate to do so, the judgment also leaves open the question of when if ever such an order will be appropriate.
Update
The Court of Appeal subsequently refused permission to X to appeal, Peter Jackson LJ holding that an appeal from the conclusions of Sir James:
would not have a real prospect of success. The arguments were thoroughly analysed by the Judge and his conclusions were correct. It is settled law, before and since the HRA 1998, that the court may countermand the decisions of mature minors in their best interests. Section 8 FLRA 1969 cannot be interpreted so as to confer upon mature minors an absolute right to refuse treatment. The ECHR does not suggest or mandate that conclusion either. The Canadian authorities do not have the effect contended for. Indeed paragraph [2] of AC (incompletely cited at paragraph 39 of the applicant's skeleton argument) arises from the fact that the Canadian legislation expressly creates a presumption in favour of the decision of a mature minor over 16: that state of affairs, which falls short of the absolute autonomy argued for in this case, supports the conclusion that such a radical change in the law must be a matter for Parliament.
There is no compelling reason for this court to hear an appeal. The arguments have been exhaustively considered at first instance. They make a case for a change in the law: they do not sustain a case about what the law is.
Lawful medical treatment decisions in relation to mature minors already require very great weight to be given to the view of the patient. Allowing for differences of expression, there is much common ground between the approach identified in AC and that explained by Balcombe LJ in Re W at 88. The fact that there is some divergence in academic opinion in a matter of this kind is not surprising. Even if this court was entitled to revisit its earlier decisions, there is no indication that there is any uncertainty in the settled law, nor that any subsequent developments (including the HRA and the passage of time) require it to be revisited by the courts.
[1] Note, Tor and Alex having been involved in the case, they have not contributed to this note.
