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Michael Freeman, Rethinking Gillick, 13 Int'l J.
Child. Rts. 201 (2005)

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The InternationalJournalof Children ' Rights, 13: 201-217, 2005. 201
C 2005. Koninklijke Brill NV Printedin the Netherlands.

Rethinking Gillick

MICHAEL FREEMAN
FacultyofLaws, University CollegeLondon

England's Gillick case in 1985' is rightly seen by observers the world over as
a landmark in children's rights jurisprudence (and see Thomas, 2000). The rul-
ing by the highest court in the United Kingdom that parental rights yielded to
the child's right to make his or her own decision when of 'sufficient under-
standing and intelligence' seemed to usher in a new age (Eekelaar and
Dingwall, 1990), one which legislation in England in 19892 and, of course, the
UN Convention on the Rights of the Child3 the same year affirmed. It now
appears to have been a false dawn. The courts in England, starting in 1992,
have beat a hasty retreat. This article examines the move away from Gillick -
and laments it. It concludes by calling for a new Gillick, which puts goals
and values in the forefront, and places less emphasis on knowledge and
understanding.

The Gillick Decision

The Gillick decision arose out of a challenge by Victoria Gillick to a Circular

issued by the DHSS in England which authorised doctors to give contracep-
tive advice and treatment - in effect the contraceptive pill - to under-age girls
(those under 16) without parental approval. By a narrow majority of 3-2 the
House of Lords held the Circular was lawful. Noting that the law must be 'sen-
sitive to human development and social change', Lord Scarman, speaking for
the majority, pronounced that
a minor's capacity to make his or her own decision depends on the minor having
sufficient understanding and intelligence to make the decision
4
and is not to be
determined by reference to any judicially fixed age limit.
The case, though nominally about the legality of a government circular on con-
traception, has much wider effect both within and beyond healthcare deci-
sions.' Thus, Seymour argues that Gillick
... opened the way for case-by-case decisions in a range of situations whenever
children are old enough to argue that they have the capacity to make informed
assessments. If this view is accepted, it might be seen as establishing a new right
 MICHAEL FREEMAN

for older children, one which could be defined as: an entitlement, in all disputes,
to have their actual capacitiesdetermined, rather than being subject to pre-
sumptions based on their ages. (Seymour, 1992, pp. 100-101)
Others were less optimistic. Coleman thought Gillick might have made the
position of under 16s worse rather than better.
First, the complexity of the case, and the legal wrangles surrounding it, have left
teenagers confused and uncertain where they stand. Second, the publicity
accorded to Mrs Gillick, as well as the tightening up of definitions, has left doc-
tors with less room to manoeuvre and has caused almost all medical practition-
ers to exercise greater caution than before. (Coleman, 1993)

I doubt if Coleman is right on the first concern. He may well have been right
on the second (and see B.M.A., 2001). Certainly, judges have exercised greater
caution. Before I examine post-Gillick decisions which illustrate this, I need
to discuss further background, for an understanding of the current state of the
law requires an examination of the stages through which it has passed.

The Family Law Reform Act 1969

The 1969 Act lowered the age of majority from 21 to 18. It also in s.8(1) pro-
vided in unambiguous language that 'the consent of a minor who has attained
the age of sixteen ... shall be as effective as it would be if he were of full age'.
I say 'unambiguous' but this is to contend with Lord Donaldson M.R. who in
Re Wis of no doubt that the language is ambiguous. Re W, as we shall see, con-
cerned a 16-year-old suffering from anorexia nervosa who was refusing med-
ical treatment for this condition. Said Lord Donaldson in Re W:
The argument that W, or any other 16- or 17-year-old can by refusing to consent
to treatment veto the treatment notwithstanding that the doctor has the consent of
someone who has parental responsibilities involves the proposition that s.8 has
the further effect of depriving such a person of the power to consent. It certainly
6
does not say So.

And in the earlier case of Re R (a 15-year-old refusing psychotic medication),

he had argued that, although a 16-year-old had the right to consent, 'if he or
she refuses, consent can be given by someone who has parental rights or
responsibilities'.'
It is true that s.8(1) does only refer to the power to give a consent and not to
the refusal so to do. Thus, there is nothing in s.8(1) which creates the power of
veto in favour of the 16-year-old. But it is wrong to draw Lord Donaldson's
conclusion for two reasons. First, Parliament did not consider and reject the
power of veto and may have been assumed to believe that consent embraced
 RETHINKING GILLICK

refusal. Secondly, Lord Donaldson appears to have overlooked s.8(3). This

states
Nothing in this section shall be construed as making ineffective any consent
which would have been effective if this section had not been enacted.
The meaning of this is far from clear and commentators have been puzzled.8
What is clear is that it is concerned with the preservation of pre-existing
rights: in my view the right of a child under 16 to continue to be able to pro-
vide a valid consent. The question was addressed in Gillick, but no firm con-
clusion reached. Lord Donaldson in Re R and Re W can be taken to be
upholding a different interpretation: namely that the pre-existing rights upheld
by s.8(3) are the rights of those with parental responsibilities. 9 But Lord
Donaldson must be wrong because, if s.8(3) is referring to parental rights at
common law, these are rights which have 'dwindled' to the point of 'yielding'
to the child's right to make his/her own decisions when of 'sufficient under-
standing and intelligence'. 0 For Lord Scarman and the majority in Gillick it is
clear that the refusal of a child below 16 who is Gillick-competent is 'deter-
minative'. If Lord Donaldson were right - indeed this was argued by Mrs
Gillick's counsel - until the passing of the 1969 Act any treatment of anyone
under 21 without parental consent must have been unlawful - a conclusion so
utterly preposterous that it is difficult to imagine anyone contemplating it
(though Lord Donaldson himself comes close to so doing). "
There is a further question, which has been insufficiently examined. Does
the Gillick-competence test apply to 16 and 17-year-olds as well as to those
below the age of 16? According to Lord Donaldson it has 'no reference' to 16
and 17-year-olds. 2 The better view is that, like the rest of us, they are presumed
competent, unless the contrary can be proved.' 3 Whether it should be easier
to do so in the case of a 16-year-old than with someone of 26 or 66 is a moot
4
point. I would doubt it.'

The Children Act 1989

The Children Act 1989 was not in operation when the first case in the retreat
from Gillick (Re R) was decided. It was when the courts came to consider
Re W.
The Act is significant for a number of reasons. 5
First, following the Gillick precedent, there are five provisions in the Act
which give a child of sufficient understanding to make an informed decision
the power to refuse to submit to medical and psychiatric examinations and
other assessments 16 (and in one provision only, psychiatric and medical
 MICHAEL FREEMAN

treatment).' 7 The general philosophy embedded in these provisions favours

empowering the Gillick competent child and investing in him and her the
power specifically of veto.18
Secondly, W was in the care of the local authority. This, accordingly, had
parental responsibility. 9 It would seem to follow from Re R that the authority
could have consented to W's treatment on her behalf. But it applied to the court
for a direction that it be at liberty to place W in the hospital specializing in the
treatment of eating disorders and that she be given medical treatment without
her consent if necessary. Section 100 of the 1989 Act is designed to circum-
scribe the extent to which a local authority may seek to invoke the inherent
jurisdiction of the court.20 Inherent Jurisdiction cannot be invoked to make a
child who is the subject of a care order a ward of court. But leave may be sought
and granted if, inter alia, 'there is a reasonable cause to believe that if the
court's inherent jurisdiction is not exercised with respect for the child he is
likely to suffer significant harm'. 21It may be argued that in granting leave and
in making the directions sought the judges have evinced a reluctance to accept
one of the clear goals of the Children Act - to leave decisions to parents and
their substitutes. In doing so, they have left us with a number of concerns. If
the local authority had, despite W's protestations to the contrary, consented to
treatment, it would have been flouting s.22 of the Children Act. This requires
the views of the child to be ascertained and 'due consideration' to be given to
them in making a decision with respect to the child.2 2 If the local authority were
not able to invoke the court's assistance it would risk a challenge by way of
judicial review if it ignored a competent child's protestations. By transferring
responsibility from its shoulders to those of the court it avoids both challenge
and opprobrium. The court's decision may be appealed, but there is no other
recourse.
Thirdly, the checklist in s. 1(3) lists among other considerations to which the
courts are to have regard 'the ascertainable wishes and feelings of the child
concerned (considered in the light of his age and understanding)'. 23 The check-
list only applies to contested s.8 applications 24 and to part IV orders. 25 There
are two views as to what this means. Thorpe J., at first instance in Re W, held
it to have no application in W's case because it was not a contested s.8 appli-
cation or an application for an order under part IV of the Act. 26 But in the Court
ofAppeal Nolan L.J. expressed the opinion that the checklist had general appli-
cation. 27 Whilst this cannot be literally right - if Parliament had so intended, it
could have said so - it is surely appropriate that considerations in the check-
list are relevant, particularly that which emphasises the importance of a child's
wishes and feelings.
 RETHINKING GILLICK

The Retreat: Re R

R was 15 and was refusing to give her consent to the administration of med-
ication.28 The unit caring for her made it clear that, if she were to remain there,
they required a free hand to administer drugs to her, against her will if neces-
sary. The local authority which had care 29 of her was reluctant to authorise the
administration of drugs to her against her will, and thus had recourse to ward-
ship proceedings. The issue was thus whether the court had the power to over-
ride a refusal by a ward to undergo medical treatment to control her mental
condition. The Court of Appeal considered that she was not Gillick-competent
because she had neither the ability to understand the nature of the proposed
treatment, nor a full understanding of the consequences both of the treatment
(its intended and possible side effects), and the anticipated consequences of a
failure to treat.
Staughton L.J. considered that it was not necessary on the facts to decide
whether Gillick provided for the proposition that the parent of a competent
child has the power to override the child's decision because the powers of the
wardship judge include the power to consent to medical treatment when the
ward has not been asked or has declined.30 Gillick was not a wardship case.
The wardship court had, it was held, the power to override the decisions of a
Gillick-competent child - whether saying 'yes' or 'no' to treatment - and his
or her parents. This meant that the powers of the court over the child could be
greater than the powers of his or her parents.
Lord Donaldson went beyond what was necessary to decide the case before
him, and commented on the question of a conflict between the child's wishes
and the parents. Motivated primarily by the need to protect the doctor against
what otherwise might be unlawful treatment,3' he constructed the 'keyholder'
metaphor. 32 (As we shall see in Re W he rejected this).3 3 He considered that
there are a number of people who can give their consent to the treatment of a
child under 16, so as to make the doctor immune from a charge of battery. Only
if all those people withhold their consent will it be impossible in law to treat
the child. He sees consent as 'a key which unlocks a door'. 34 A Gillick-com-
petent child has that key, but so do his/her parents. They have a several as well
as a joint right 'to turn the key and unlock the door'. 35 Returning to Lord
Scarman's judgment in Gillick he argues
... Lord Scarman was discussing the parents' right to determine whether or not
their minor child below the age of 16 will have medical treatment and this is the
"parental right" to which he was referring in the latter passage. A right of deter-
mination is wider than a right to consent. The parents can only have the right of
determination ifeitherthe child has no right to consent, i.e. is not a keyholder, or
the parents hold a master key which could nullify the child's consent. I do not
understand Lord Scarman to be saying that, if a child was "Gillick-competent"...
 MICHAEL FREEMAN

the parents ceased to have an independent right of consent as contrasted with ceas-
ing to have a right of determination, i.e. a veto. In a case in which the "Gillick-
competent" child refuses treatment, but the parents consent, that consent enables
treatment to be undertaken lawfully, but in no way determines that the child shall
be so treated. In a case in which the positions are reversed, it is the child's con-
sent which is the
36
enabling factor and again the parents' refusal of consent is not
determinative.
So, in Lord Donaldson's view a Gillick-competent child could have treat-
ment forced upon her against her will. In effect this would remove autonomy
and self-determination from children at an age when more responsibility and
self-direction is expected of them. Many will find the implications of Lord
Donaldson's judgment insensitive if not offensive. A Gillick-competent girl of
15 cannot object to a male doctor touching her, if one of her parents gives con-
sent. Further, once the child is a ward of court, the child's 'well-established
task'3 7 is to have regard to the welfare of the ward as the paramount consider-
ation.3 8 In other words, the wishes of a 17-year-old and her parents could be
overridden if, in the court's opinion, this was in the ward's best interests. A
fortiori, the wishes of a Gillick-competent 15-year-old and her parents could
also be overridden applying this criterion.

Further Retreat: Re W

W was 16 (and thus within the scope of s.8 of the Family Law Reform Act
1969). She was an orphan whom 'fate has dealt harshly'. 3 9 She was in the care
of the local authority which invoked the inherent jurisdiction of the High
Court when W, who was suffering with anorexia nervosa, refused treatment for
her eating disorder. Lord Justice Balcombe, following the line of Lord Justice
Farquharson in Re R, held that in exercising inherent jurisdiction, 'the child's
welfare is the court's paramount consideration' .40 He agrees that respecting the
wishes of the child may be one way of giving paramount consideration to the
welfare of the child.
... the older the child concerned the greater the weight the court should give to
its wishes, certainly in the field of medical treatment. In a sense this is merely one
aspect of the application of the test that the welfare of the child is the paramount
consideration. It will usually be in the best interests of a child of sufficient age and
understanding to make an informed decision that the court should respect its
integrity as a human being and not lightly override its decision on such a personal
matter as medical treatment. All the more so if that treatment is invasive. 4'
According to Lord Justice Balcombe, the court must ascertain the wishes of the
child and approach the decision with a strong predilection to give effect to
 RETHINKING GILLICK

those wishes, since this will often be in the child's best interests. But where in
the court's view, it is not, those wishes may be overridden.
Re W is not the first instance of a child's rights being trumped by a court's
view of that child's best interests. They had previously done this where the
child was under 1642 and also where the child was learning disabled (Many will
remember Jeanette's case in 1987). 41 But W was 16, and satisfied the law's
competency tests. The Court of Appeal could have limited itself to consider-
ing the rights of the court in exercising its inherent jurisdiction. But it did not
do so and examined, as in Re R, the rights of parents - somewhat ironically
because W does not have any.
Given that R was not Gillick-competent and was 15 (and thus not within the
scope of the 1969 Act), Re W is a decision of much greater significance - and
concern.
Lord Donaldson, aware of the criticism that his judgment in Re R attracted,
attempted a different formulation in Re W. He rejects the keyholder metaphor
and substitutes for it the analogy of the 'legal "flak jacket"'. This
... protects the doctor from claims by the litigious whether he acquires it from
the patient, who may be a minor over the age of 16 or a 'Gillick-competent' child
under that age, or from another person having parental responsibilities which
include the right to consent to treatment of the minor. Anyone who gives him a
flak jacket (i.e. consent) may take it back, but the doctor only needs
44
one and so
long as he continues to have one he has the legal right to proceed.
To forestall the criticism that a 17-year-old could be forced to undergo a ter-
mination of pregnancy against her will - he admits this is a hair-raising possi-
bility - he himself dons the flak-jacket of medical ethics. Doctors would not 45
let it happen 'unless the abortion was truly in the best interests of the child'.
But he concedes it could happen, and cites the famous 'Sotos Syndrome' case
(Re D in 1976) ,46 where it was only as a result of chance intervention by an edu-
cational psychologist financed by the National Council for Civil Liberties that
an 11-year-old was saved from being sterilised unnecessarily. He does not
address the illogicality of a 15-year-old girl, for example, being allowed to con-
sent to a pregnancy termination but not being allowed to refuse an abortion.
It will be noted that Lord Donaldson's concern yet again is not with the rights
of adolescents but in protecting doctors from the 'litigious'. What he fails to
see - or address - is how removing legitimate expectations from rights-
conscious adolescents is likely to provoke litigation. Extending this reasoning
to 16-year-olds almost a generation after the passing of the 1969 Act, and in an
age more conscious of the importance of taking children's rights seriously 47 is
thoroughly objectionable and, indeed, unprincipled. By extending his reason-
ing to parental rights, quite unnecessarily on the facts before the court, he has
 MICHAEL FREEMAN

created a situation where a plethora of parties can by their acts foist treatment
on an unwilling adolescent. In his summary Lord Donaldson states this con-
clusion succinctly:
No minor of whatever age has power by refusing consent to treatment to override
a consent to treatment by someone who has parental responsibility for the minor
and afortioria consent by the court. Nevertheless, such a refusal is a very impor-
tant consideration in making clinical judgments and for parents and the court in
deciding whether themselves to48
give consent. Its importance increases with the
age and maturity of the minor.
How significant the concession that an adolescent's refusal is a 'very impor-
tant' factor in clinical decision-making becomes cannot be judged in advance.
As the medical profession moves away from paternalism, albeit slowly, it may
take on importance.
There is some understanding of adolescence in Lord Donaldson's judgment
(but contrast Yamamoto et aL, 1987). It is a pity that his understanding of
anorexia nervosa is not greater for the dilemma posed in W's case constitutes
a paradigm for those who want to understand the importance of children's
rights. 49 The anorexic is typically lacking in self-confidence. She may suffer,
what Hilda Bruch, discussing one case, calls 'the basic delusion of not having
an identity..., of not even owning their body and its sensations'. (Bruch, 1974,
50). The causes of anorexia differ but what unites them is 'the urgent need to
be in control of their own lives and have a sense of identity'.2 ° We know that
W wanted control over her life: she wanted to stay in the adolescent psychiatric
unit and decide when she would eat. The ability to make these decisions was
taken away from her. Her life may have been saved, but at the price of further
undermining her identity and integrity. Indirectly, decision like that in Re W
will create more anorexics, and also more disturbed adolescents.

The Retreat Confirmed

There was one case which adopted the Re R/Re W line before those cases were
decided. In Re E in 1990 Ward J. had overridden the refusal of a 15-year-old
Jehovah's Witness to consent to a life-saving blood transfusion. In that case
Ward J. remarked
I find that E has no realisation of the full implications which lie before him as to
the process of dying. He may have some concept of the fact that he will die, but
as to the manner of his death and to the extent of his and his family's suffering I
find he has not the ability to turn his mind to it nor will he do so.5
Ward J.'s reasoning should be carefully studied. Were it applied to an adult, it
is dubious whether refusal to be treated would ever be allowed. The case itself
 RETHINKING GILLICK

had a tragic sequel.52 At 18 the boy exercised his rights and refused further
transfusions. He died within days of his eighteenth birthday, having spent the
last two-and-a-half years of his life being violated (as he saw it) as a result of
a court order.
The first case after Re W is Re S in 1994.53 To the 15-year-old in this case who
suffered from thalassaemia compelling her to undergo blood transfusions was
described by the girl herself as 'like rape'. 5 4 She was a new convert to the
Jehovah's Witness faith. She said 'Having someone else's blood is having
someone else's soul'. 55 She prayed for a miracle and for God to save her. But
like Ward J. in Re E, Johnson J. in Re S was prepared to override the girl's con-
sent. Rejecting the idea that S was 'in-between' adulthood and childhood - in
other words in the category for whom Gillick-competence is designed - he held
she was 'still very much ...a child'.5 6 Though impressed by her integrity and
commitment, they were, said the judge, 'the integrity and commitment of a
child and not of somebody who was competent to make the decision that she
tells me she has made. She hopes still for a miracle. My conclusion is, there-
fore, that she is not "Gillick-competent".57 Many adults in S's position would
hope for a miracle. Given that a psychiatric witness in the case doubted
whether she was 'seriously immature' for someone of her age, it is difficult how
the judge concluded she was not Gillick-competent. A finding of Gillick incom-
petence is, of course an easy way out - and one accordingly that has regularly
taken (and not just by the courts, but also by doctors who are the gatekeepers
of treatment). One thing is certain and that is that the requirements when
assessing an adult's competence to refuse treatment are far less stringent. Jane
Fortin commented that the requirements in Re E and Re S are 'difficult to jus-
tify on logical grounds to the teenagers themselves' (Fortin 2003).
The next case is Re L.58 The adolescent in this case was a 14-year-old deeply
religious Jehovah's Witness who suffered life-threatening scalds whilst
bathing. Once again, the court authorised treatment (blood transfusions and
other surgical interventions) despite her strong opposition. She lacked, the
court implied, 'the constructive formulation of an opinion which occurs with
adult experience' 9 I am not sure what this is but I have no doubt that on
the evidence of this case L's understanding was comparable to that of most
adults. She had, for example, taken the step of carrying 'An Advance Medical
Directive/Release form'. The case is particularly significant because the judge
acknowledged that L had not been given 'all the details which it would be right
and appropriate to have in mind when making such a decision' . 60 Of course, if
you withhold information from a child it is less likely they can make an
informed decision. This is important. Although the judges in Gillick did not
address the question directly it is clearly important that competence be under-
stood in terms of capability of understanding rather than in terms of what the
child actually understands. 6 1L may not have understood what was involved in
 MICHAEL FREEMAN

her refusal: this does not mean that she was not capable of understanding had
she been given the requisite information. Combine an unwillingness to accept
a child is Gillick-competent with a refusal to provide them with the informa-
tion which will assist this process and it becomes relatively easy to override an
62
adolescent's refusal of treatment.
One of the most poignant cases is Re M.63 The judgment in this case is strik-
ing in that it is addressed to the 15-year-old girl herself. The case itself is
significant (i) because there is no suggestion that the girl is not Gillick-
competent (she clearly is) and (ii) because the court authorises major surgery -
a heart transplant - against the wishes of an adolescent. The judge himself
admits that to impose 'a heart transplant on a young woman who objected [is]
very serious indeed'. 64 Fortin comments:
The court can legitimately argue that society has an interest in protecting under-
age minors, irrespective of competence, from their own dangerous mistakes until
they attain their majority... This approach does not demean the minor by sug-
gesting that his or her emotional maturity is fundamentally flawed. (Fortin, 2003)
To assume M was making a dangerous mistake is to assume that life-prolong-
ing treatment is in the interest of the adolescent. M gave cogent reasons for
refusing the transplant. She didn't want to be different, and she didn't want to
take medication for the rest of her life. Forcing her to live may well have
demeaned her. As Penney Lewis has pointed out:
It may be that in a small minority of cases, an adolescent will be able to make a
competent, maximally autonomous choice to refuse life-saving treatment.
Respecting such a choice will be difficult, but it is preferable to arbitrary dis-
crimination on the basis of age alone. (Lewis, 2001)
The last case, decided recently, is Re P 65 The subject was nearly 17 and a
staunch and committed Jehovah's Witness. In the light of his problems (he had
hypermobility syndrome, symptoms of which included a tendency to bleed be-
cause of fragility of blood vessels), it was likely that an episode might occur-
one already had - requiring the administration of blood or blood products if he
were to survive. The hospital was seeking leave to administer blood if his sit-
uation became life-threatening. It knew he would object. He already had and
had done so independently of his parents. Johnson J. made the order.
Astonishingly, he made no reference to the Family Law Reform Act 1969 s.8.
The law, he said, was 'clear' :66 it was found in Balcombe L.J.'s words, which
I have already quoted. There is no discussion of whether the patient is compe-
tent or not, though from what we can glean he clearly is. Johnson J. thought
... there may be cases as a child approaches the age of 18 when his refusal would
be determinative. A court will have to consider whether to override the wishes of
a child approaching the age of maturity when the likelihood is that all that will
 RETHINKING GILLICK

have been achieved will have been deferment of an inevitable death and for a mat-
67
ter only of months.
But - and here he quoted Nolan L.J. in Re W68 - 'it is the duty of the court to
ensure so far as it can that children survive to attain that age'. It was, Johnson
J. concluded, in the interests of the patient 'in the widest possible sense - med-
ical, religious, social, whatever they may be' 69 to make the order sought,
though he added the proviso 'unless no other form of treatment is available'.
It is difficult to see how this decision can be in the interests of the patient. It may
not be in his best medical interests. It cannot conceivably be in his best reli-
gious interests - it is surely arrogant of the Judge to think it possibly can be.
And as for social interests 'whatever they may be' (can a judge ever have
expressed himself more imprecisely!), the judge was aware of Re E.70 He
quotes it and knows full well that the likely end of P will be the same as E's.
Indeed, it is distinctly possible that no episode requiring the administration of
blood will occur until after the eighteenth birthday, at which point the order can
have no effect.
Twelve years after Re Rjudges are now so little troubled by the implications
of what they are doing that a judgment can be given which mentions neither
Gillick nor the 1969 Act and ignores the fact that the 'child' was clearly com-
petent. And this despite the advances in the law relating to competence in
the years between Re R and Re P. It is as if Re C 71and St George ' Healthcare
NHS Trust v. S 72 had never been decided.

Some Critical Observations

A child can say 'yes' to medical treatment but cannot say 'no'. This is the sim-
ple, indeed trite, conclusion to which one comes after an examination of the
cases. Of course, a child can only agree to treatment a doctor is prepared to give
and the assumption must be that clinical judgement will dictate that only treat-
ment in the potential patient's best interests will be on offer. On the other hand,
refusal involves a rejection of what 'doctor thinks best' and harm may be a
likely consequence. This may be an underlying rationale of the jurisprudence
contained in the cases. Nevertheless, it is a concern with the doctor's interest
rather than the child patient's rights which emerges as a dominant considera-
tion. I believe the retreat from Gillick is wrong.
First, because it exposes the pretence that is competence. Not only are
courts - and it may be supposed doctors also - reluctant to find a child com-
petent to the point of imposing more stringent requirements than are imposed
on adults, but it is clear that competence is irrelevant where the really impor-
tant questions are addressed.
 MICHAEL FREEMAN

Secondly, the retreat from the principle of Gillick and the express norms con-
tained in the 1969 Act betrays a hypocrisy which is likely to undermine young
people's trust in the law and in the medical profession. I have not addressed the
implications of these cases for the law on medical confidences,73 but it is obvi-
ous that these too are badly dented by them.
Thirdly, the law now discriminates and does so on grounds of age when the
clear intention of the highest court in Gillick was to adopt a functional, rather
than a status-based, approach.7 4 An elderly schizophrenic in Broadmoor can
refuse treatment: an intelligent 15-year-old girl cannot. And treatment can be
imposed upon her using force if necessary.
Fourthly, the law as now formulated makes a clear distinction between
accepting and refusing treatment, but the distinction itself is not clear. For
example, it may be that there are alternative treatments and that the adolescent
wishes to agree to one form of treatment but that the doctor wishes to treat dif-
ferently. In the 'Broadmoor' case just referred to, the patient was agreeable to
more conservative treatment than the recommended amputation of a leg. Or
suppose the adolescent is prepared to consent to experimental treatment but the
doctor is not prepared to take this risk and only offers conventional treatment
75
which she refuses.
Fifthly, the retreat from Gillick runs counter to the philosophy of the
Children Act 1989, which in specified areas, makes it clear that children can
object to medical and psychiatric examination, assessment and treatment.
Re R and Re Wand their progeny have been criticised 76 but these decisions
have their defenders too (Fortin, 2003). Some77 of those who defend the retreat
from Gillick rely on a line of reasoning which I argued for back in 1983 in The
Rights and Wrongs of Children.Adopting a Rawlsian approach (Rawls, 1971)
I argued
what sorts of action or conduct would we wish as children, to be shielded against
on the assumption that we would want to mature to a rationally autonomous
adulthood and be capable of deciding our own system of ends as free and rational
beings? We would choose those principles that would enable children to mature
to independent adulthood. (Freeman 1983, 57)
Both Lowe and Juss (1993) and Gillian Douglas (1993) adopt this approach.
Thus Lowe and Juss argue that 'it is surely right for the law to be reluctant to
allow a child of whatever age to be able to veto treatment designed for his or
her benefit, particularly if a refusal would lead to the child's death or perma-
nent damage' (Lowe and Juss 1993, 865). And Douglas assumes that if my 'lib-
eral paternalism' approach is adopted, the child patient can be held to be 'not
mature' and her decision accordingly overridden (Douglas 1993, 868). Would
she permit a Gillick-competent child to reject medical treatment if that would
prevent him/her from reaching 'independent adulthood'? I doubt it.
 RETHINKING GILLICK

Would it not be better to see a 15-year-old like that in Re Mas already 'capa-
ble of deciding [her] own system of ends as [a] free and rational being'? Or to
do the same with the 16-year-old anorexic in Re W? It is surely the case that
someone so capable is actually beyond what is required to satisfy Gillick-
competence.
Indeed, Brazier and Bridge, in an important article argue very much along
these lines. The test they propose is 'maximal autonomy' rather than 'compe-
tence'. They say
If the law is to operate a truly functional test of autonomy, and not rely on outcome
to vitiate decisions society judges imprudent, a presumption has to be made that
adults not afflicted by mental disability possess the strength of character to make
their own choices, to prioritise their own interests. The younger the individual the
less that presumption may accord with reality ... As long as minority necessar-
ily imposes a degree of dependency on the minor, and until, in the vast majority
of cases, the hormonal disturbances of adolescents are safely in the past, society
might well adopt a sceptical approach to autonomy. Rather than presuming
autonomy, decision makers should satisfy themselves that a choice is maximally
autonomous. (Brazier and Bridge 1996, 109)8
Were the adolescents in the cases we have been considering sufficiently
autonomous to make choices which should accordingly not have been gain-
said? E, W and M I think were: there might be doubts about the others. But the
question we need to ask is not what the adolescents in these cases know - there
should be less talk of knowledge and understanding - but how the decisions
they came to further their goods and cohere with their system of values. One
lesson we can draw from the retreat from Gillick is that Gillick itself may need
to be reformulated. That this is unlikely,7 9 given the scepticism the Gillick deci-
sion now apparently engenders, is a sad reflection on our times and an indict-
ment on the case law post-Gillick which is itself partly responsible for a
negative image of adolescence. 80

Notes
' Gillick v. West Norfolk and Wisbech Area Health Authority [ 1986] AC 112.
2 The Children Act 1989: on which see Michael Freeman, 1992 and Jeremy Roche,

2002.
3 The United Nations Convention on the Rights of the Child 1989. See Geraldine Van
Bueren, 1995. More directly on health issues Priscilla Alderson (2002) may be consulted.
4 See note 1.
5 To all sorts of questions including punishment (the question has been raised as to
whether a Gillick-competent child can be punished), schooling and accommodation.
6 Re W[1992] 4All E R627, 634.
7 ReR [1992] 1 FLR 190, 199.
 MICHAEL FREEMAN

See e.g. Hoggett, B, 1981, 12; Bromley 1987, 275.

8
9 An interpretation which had a lot of support at the time.
10 Lord Scarman's words in Gillick v. West Norfolk and Wisbech AHA [1986] A C 112,
186.
1 And see Michael Jones, 1986, 41.
12 SeeRe W[1993] Fam 64, 81.
13 See Re C[1997] 2 FLR 180, 195.
14 See A Metropolitan Borough Council v. AB [ 1997] 1 FLR 767.
1 See Freeman, 1992.
16 They are in s.38(6) (interim care or interim supervision order), s.43(8) (child

assessment order), s.44(7) (emergency protection order), and paras. 4(4)(a) and s.5(a)
of Schedule 3 (supervision order). One of these provisions has since been interpreted -
quite contrary to the meaning of the words used and Parliamentary intention - rather in
the spirit of Re R and Re W. See South Glamorgan County Council v. Wand B [1993] 1
FLR 574. And see Kennedy and Grubb (2004), 235.
17 Para. 5(5)(a) of Schedule 3.
18Neither of the two judges who addresses these provisions does so other than curso-
rily. Lord Donaldson notes that the provisions 'do not impinge upon the jurisdiction of
the court to make prohibited steps or specific issue orders' (where there is no power of
veto). Neither of their orders was anyway relevant here. And Balcombe L.J. sees the pro-
visions merely as an application of the test (in s. 1(1) of the 1989 Children Act) that the
welfare of the child is the paramount consideration. See Re W [1992] 4 All E R 627, 638
and 643.
19 Under s.33(3) of the Children Act 1989.
20 See Cretney, 1990.
21 Children Act 1989 s. 100(3), (4)(b).
22 Children Act 1989, s.22(4)(a), 5(a).
23 Children Act 1989, s. 1(3)(a).
24 Section 8 applications are for residence orders, contact orders, specific issue orders

and prohibited steps orders.

25 Part IV orders are public orders, notably care and supervision orders.
26 It is then reported as ReJ(see The Times, 14 May 1992).
27 [1993] 4 All E R 627, 647.
28 Anti-psychotic drugs.
29 Her status is not entirely clear. She had originally been received into care. An interim

care order was made subsequently, but it does not appear that a care order was ever made.
30 [1992] 1 FLR 190,202.
31 A battery.
32 [1992] 1 FLR 190, 196.
33 See below, 207. He substituted the metaphor of the 'flak jacket'.
34 [1992] 1 FLR 190, 196.
31 Ibid.
36 Ibid., 197-198.
37 Ibid., 206.
38 See Children Act 1989 s. 1(1). In Re D [1977] Fain 158 Dunn J. referred to the wel-
fare of the child as the 'golden thread' running through wardship.
39 [1992] 4 All E R 627, 629per Lord Donaldson M.R.
40 [ 1992] 4 All E R 627, 641. The quotation from Farquharson L.J. is in Re R at [ 1992]
1 FLR 190,206.
 RETHINKING GILLICK

41 [1992] 4All E R627, 643.

42 A good example is Re S [1993] 2 FLR 437.
43 [ 1988] A C 199. For a critique see Freeman, 1988.
- [1992] 4 All E R 627, 635. For criticisms of the keyholder metaphor see Bain-
ham, A., 1992.
45 [1992] 4 All E R 627, 635-636. See also Balcombe L.J. at 644-645. On abortion see
Lee, E., 2004. See also Herring, J., 1997. And on these issues in the U.S. see Guggen-
heim, M., 2002.
46 ReD [1976] Fam 185.
47 See Freeman, M. 1997,
48 [1992] 4 All E R 627, 639-640.
49 See Delfos, M.F. 2002.
50 Ibid., 88. But see Giordano, S. (2005).
5' [1993] 1 FLR 386.
52 This is revealed in Re S [ 1994] 2 FLR 1065 and also in Re P [2004] 2 FLR 1117.
53 [ 1994] 2 FLR 1065.
54 Ibid., 1072.

55 Ibid., 1068.
56 Ibid., 1076.
57 Ibid.
58 [1998] 2 FLR 810.

59 Ibid., 812.
60 Ibid., 813.
61 A point rightly emphasised by Ian Kennedy and Andrew Grubb (2004).
62 True consent must be informed consent.
63 [ 1999] 2 FLR 1097.

- Ibid., 1099.
65 [2004] 2 FLR 1117
66 Ibid., 1119.
67 Ibid.
68 [1992] 4All E R 627.
69 [2004] 2 FLR 1117, 1120.

70 [1993] 1 FLR 386. referred to above at 209.

71 [ 1994] 1 All E R 819: the court respected the right of a paranoid schizophrenic killer
in a secure mental hospital to refuse an amputation of his leg to cure potentially fatal gan-
grene. See also Re B [2002] 2 All E R 449 and Re J T [ 1998] 1 FLR 48.
72 St George ' HealthcareNHS Trust v. S [ 1999] Fam 26. A competent woman can refuse

a Caesarean even if it puts her and her unborn child's life in jeopardy.
73 But it is not clear what obligation of confidence a doctor has to a child, whether Gillick
competent or not.
71 See Skegg, 1984,49-56.
71 As in Simms v. Simms, A v. A [2003] Fam 83. On experimental treatment see
Nicholson, 1990.
76 For example, Brazier, 2003; Bainham, 1992, p. 194; Lewis, 2001.
77 Lowe and Juss, 1993; Douglas, 1993.
78 See also Bridge, 1999, pp. 592-4.
79 But see the interesting interpretation of the Crime and Disorder Act 1998 by Barry
Vaughan, 2000. He argues that rather than castigating the Act we should see it as one which
encourages youths to take greater responsibility for their actions and to attach themselves
 MICHAEL FREEMAN

to an emotional community. The young must become active citizens, taking charge of their
lives (albeit in accordance with the wishes of others). It is only those who do not do so who
will bear the brunt of the coercion which is, of course, so evident in the Act.
80 I have not addressed the Dutch euthanasia issue, deliberately. A good account is
Leenen, 2002.

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