THE CIRCUMCISION REFERENCE LIBRARY
[CIRP Note: This case is included in the library because it clearly establishes the duty of parents to use their authority to protect the person of the child.]
Held -- (1) (Lord Templeman dissenting) Having regard to the reality that a child became increasingly independent as it grew older and that parental authority dwindled correspondingly, the law did not recognise any rule of absolute parental authority until a fixed age. Instead, parental rights were recognised by the law only as long as they were needed for the protection of the child and such rights yielded to the child's right to make his own decisions when he reached a sufficient understanding and intelligence to be capable of making up his own mind. Accordingly, a girl under 16 did not, merely by reason of her age, lack legal capacity to consent to contraceptive advice and treatment by a doctor (see p 409 e to g j to p 410 a c d j to p 411 b, p 412 b to d, p 414 f, p 420 d g h, p 421 d, p 422 a, p 423 c d and p 428 d e, post) dictum of Lord Denning MR in Hewer v Bryant [1969] 3 All ER at 582 and R v D [1984] 2 All ER 449 applied Re P (a minor) (1981) 80 LGR 301 approved Re Agar-Ellis, Agar-Ellis v Lascelles (1878) 10 Ch D 49, (1883) 24 Ch D 317 criticised.
(2) (Lord Brandon dissenting) A doctor who in the exercise of his clinical judgment gave contraceptive advice and treatment to a girl under 16 without her parents' consent did not commit an offence under s 6(1) or s 28(1) of the 1956 Act, because the bona fide exercise by the doctor of his clinical judgment negated the mens rea which was an essential ingredient of those offences (see p 413 g to j, p 414 f, p 425 a c d, p 427 j to p 428 b and p 431 h j, post).
(3) (Lord Brandon and Lord Templeman
dissenting) It followed that a doctor had a discretion to
give contraceptive advice or treatment to a girl under 16
without her parents' knowledge or consent provided the girl
had reached an age where she had a sufficient understanding
and intelligence to enable her to understand fully what was
proposed, that being a question of fact in each case. It also
followed that the department's guidance could be followed by
a doctor without involving him in any infringement of
parental rights or breach of the criminal law. The
department's appeal would therefore be allowed, the first
declaration would be set aside and (per Lord Fraser and Lord
Scarman) the second declaration should be overruled as being
erroneous (see p 411 g, p 413 a to d, p 414 c to f, p 416 h
j, p 423 j, p 424 h, p 425 g h and p 428 d e, post).
Per Lord Fraser and Lord Scarman. A parent who wishes to
proceed against a public authority to protect what he or she
alleges to be his or her parental rights against a threatened
infringement by the authority is entitled, because of the
private law content of the claim, to proceed by way of an
ordinary action rather than by way of judicial review (see p
405 e, p 416 c to e and p 428 d e, post) O'Reilly v
Mackman [1982] 3
All ER 1124 distinguished. Quaere (per Lord Bridge).
Whether, and if so when, non-statutory guidance issued by a
government department to subordinate authorities will be open
to judicial review (see p 426 b to d f to j and p 427 e,
post). Decision of the Court of Appeal [1985] 1 All ER
533 reversed.
NOTES:
For causing or encouraging the commission of unlawful sexual
intercourse with a girl under 16, see 11 Halsbury's Laws (4th
edn) para 1066, and for cases on the subject, see 15 Digest
(Reissue) 1228, 10493--10496. For unlawful sexual
intercourse with a girl under 16, see 11 Halsbury's Laws (4th
edn) para 1234, and for cases on the subject, see 15 Digest
(Reissue) 1222--1224, 10454--10466. For the Sexual
Offences Act 1956, ss 6, 28, see 8 Halsbury's Statutes (3rd
edn) 420, 432.
CASES-REF-TO:
Agar-Ellis, Re, Agar-Ellis v Lascelles (1878) 10 Ch D 49,
CA.
Agar-Ellis, Re, Agar-Ellis v Lascelles (1883) 24 Ch D 317,
CA.
Associated Provincial Picture Houses Ltd v Wednesbury Corp
[1947] 2 All ER 680, [1948] 1 KB 223, CA.
Hewer v Bryant [1969] 3 All ER 578, [1970] 1 QB 357, [1969]
3 WLR 425, CA.
J v C [1969] 1 All ER 788, [1970] AC 668, [1969] 2 WLR 540,
HL.
Johnston v Wellesley Hospital (1970) 17 DLR (3d) 139, Ont
HC.
O'Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237,
[1982] 3 WLR 1096, HL.
P (a minor), Re (1981) 80 LGR 301.
Queensberry Leases Case (1819) 1 Bli 339, 4 ER 127.
R v D [1984] 2 All ER 449, [1984] AC 778, [1984] 3 WLR 186,
HL.
R v Howard [1965] 3 All ER 684, [1966] 1 WLR 13, CCA.
R v Howes (1860) 3 E & E 332, 121 ER 467.
R v Tyrrell [1894] 1 QB 710, [1891--4] All ER Rep 1215,
CCR.
Royal College of Nursing of the UK v Dept of Health and
Social Security [1981] 1 All ER 545 affd [1981] 1 All ER 545,
[1981] AC 800, [1981] 2
WLR 279, CA affd [1981] 1 All ER 545, [1981] AC 800, [1981]
2 WLR 279, HL.
Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER
643, [1985] 2 WLR 480, HL.
INTRODUCTION:
Appeal
The Department of Health and Social Security (the DHSS)
appealed with leave of the Court of Appeal against the
decision of that court (Eveleigh, Fox and Parker LJJ) ([1985]
1 All ER 533, [1985] 2 WLR 413) on 20 December 1984 allowing
an appeal by the respondent, Victoria Gillick (Mrs Gillick),
against the order of Woolf J ([1984] 1 All ER 365, [1984] QB
581) hearing the Crown Office list on 26 July 1983 whereby he
held that Mrs Gillick was not entitled to declarations (i) as
against both the West Norfolk and Wisbech Area Health
Authority and the DHSS, a declaration that on its true
construction a Health Service notice (HN (80) 46) issued by
the DHSS had no authority in law and gave advice which was
unlawful, wrong and adversely affected or might adversely
affect the welfare of Mrs Gillick's children and/or the
rights of Mrs Gillick as parent and custodian of the
children, and/or the ability of Mrs Gillick properly and
effectively to discharge her duties as parent and custodian,
and (ii) as against the area health authority alone, a
declaration that no doctor or other professional person
employed by them in the family planning service or otherwise
might give any contraceptive advice and/or abortion advice
and/or treatment to any child of Mrs Gillick below the age of
16 without Mrs Gillick's prior knowledge and consent. The
Court of Appeal granted the declarations sought by Mrs
Gillick. The area health authority did not appeal against the
court's decision as to the second declaration. The facts are
set out in the opinion of Lord Fraser.
COUNSEL:
John Laws and Ian Kennedy for the DHSS.
Gerard Wright QC, David Poole QC and
Patrick Field for Mrs Gillick.
The area health authority was not represented.
JUDGMENT-READ:
Their Lordships took time for consideration. 17 October. The
following opinions were delivered.
PANEL: LORD FRASER OF TULLYBELTON, LORD SCARMAN, LORD BRIDGE
OF HARWICH, LORD BRANDON OF OAKBROOK AND LORD TEMPLEMAN
JUDGMENT BY-1: LORD FRASER
OF TULLYBELTON
JUDGMENT-1:
LORD FRASER OF TULLYBELTON. My Lords, the main question
in this appeal is whether a doctor can lawfully prescribe
contraception for a girl under 16 years of age without the
consent of her parents. The second appellant, the Department
of Health and Social Security (the DHSS), maintains that a
doctor can do so. The respondent, Mrs Gillick, maintains that
he cannot. The first appellant, West Norfolk and Wisbech Area
Health Authority, was not represented when the appeal reached
this House, but in the Court of Appeal it was represented by
the same counsel as the DHSS. In December 1980 the DHSS
issued guidance on family planning services for young people,
which was a revised version of earlier guidance on the same
subject, and which stated, or implied, that, at least in
certain cases which were described as 'exceptional', a doctor
could lawfully prescribe contraception for a girl under 16
without her parents' consent. Mrs Gillick, who is the mother
of five daughters under the age of 16, objected to the
guidance and she instituted the proceedings which have led to
this appeal, and in which she claims a declaration against
both appellants that the advice given in the guidance was
unlawful. She also claims a further declaration against the
first appellant alone, but it is of less general importance
than the declaration to which I have already referred, and I
defer consideration of it until later in this speech.
It will be convenient to dispose at once of some preliminary
matters. In the first place, Mrs Gillick's husband is not a
party to the present proceedings, but we were informed that
he is in full agreement with Mrs Gillick's contention, and I
proceed on that basis. Second, there is no suggestion that
Mrs Gillick's relationship with her daughters is other than
normal and happy, nor is it suggested that there is any
present likelihood of any of the daughters seeking
contraceptive advice or treatment without the consent of
their mother. Third, I must mention a procedural
matter. The declaration which is claimed against the DHSS, to
the effect that the advice given in the guidance was
unlawful, amounts to an assertion that the Secretary of State
for Health and Social Security has acted illegally, in the
sense of ultra vires. The remedy claimed is in the field of
public law and, since the decision of your Lordships' House
in O'Reilly v Mackman [1982] 3 All ER 1124, [1983] 2
AC 237, it is one which should normally be claimed in an
application for judicial review. But the writ and statement
of claim in this action were issued on 5 August 1982, three
months before the decision in O'Reilly, which was on 25
November 1982. Accordingly, counsel for the DHSS merely
mentioned the procedural point but he did not submit that the
procedure was out of order. I have had the benefit of reading
in draft the speech prepared by my noble and learned friend
Lord Scarman and I agree with him that, for the reasons
explained by him, Mrs Gillick was fully entitled to proceed
in the case by ordinary action. The advice, the
lawfulness of which is in dispute, is a revised version of
part of a comprehensive memorandum of guidance on the family
planning service which had been issued to health authorities
in May 1974 under cover of a circular (Health Service
circular (interim series) (HSC(IS) 32)) from the DHSS. The
memorandum of guidance was divided into a number of sections,
one of which was section G, which was headed 'The Young'. The
revised section G, which contains the disputed advice, is as
follows:
'Clinic sessions should be available for people of all ages, but it may be helpful to make separate, less formal arrangements for young people. The staff should be experienced in dealing with young people and their problems. There is widespread concern about counselling and treatment for children under 16. Special care is needed not to undermine parental responsibility and family stability. The Department would therefore hope that in any case where a doctor or other professional worker is approached by a person under the age of 16 for advice in these matters, the doctor, or other professional, will always seek to persuade the child to involve the parent or guardian (or other person in loco parentis) at the earliest stage of consultation, and will proceed from the assumption that it would be most unusual to provide advice about contraception without parental consent. It is, however, widely accepted that consultations between doctors and patients are confidential and the Department recognises the importance which doctors and patients attach to this principle. It is a principle which applies also to the other professions concerned. To abandon this principle for children under 16 might cause some not to seek professional advice at all. They could then be exposed to the immediate risks of pregnancy and of sexually-transmitted diseases, as well as other long-term physical, psychological
and emotional consequences which are equally a threat to stable family life. This would apply particularly to young people whose parents are, for example, unconcerned, entirely unresponsive, or grossly disturbed. Some of these young people are away from their parents and in the care of local authorities or voluntary organisations standing in loco parentis. The Department realises that in such exceptional cases the nature of any counselling must be a matter for the doctor or other professional worker concerned and that the decision whether or not to prescribe contraception must be for the clinical judgment of a doctor.'
That advice emphasised, more strongly than section G in its original form had done, that the cases in which a doctor could properly advise a girl under 16 years of age about contraception without parental consent would be most unusual. If the advice had been contained in a legal document there might well have been room for argument as to its exact effect, but, in my view, it is perfectly clear that it would convey to any doctor or other person who read it that the decision whether or not to prescribe contraception for a girl under 16 was in the last resort a matter for the clinical judgment of a doctor, even if the girl's parents had not been informed that she had consulted the doctor, and even if they had expressed disapproval of contraception being prescribed for her. Mrs Gillick objected to the guidance, in its amended form, and after some correspondence with the area health authority, she wrote to the acting area administrator on 3 March 1981 a letter which included this paragraph:
'I formally FORBID any medical staff employed by Norfolk A.H.A. to give any contraceptive or abortion advice or treatment whatsoever to my four daughters, while they are under 16 years without my consent.'
Mrs Gillick's youngest (fifth) daughter has been born since that letter was sent. The acting administrator replied on 9 March 1981 acknowledging the letter and stating that the area health authority held to the view 'that treatment prescribed by a doctor is a matter for that doctor's clinical judgment, taking into account all the factors of the case'. On 5 August 1982 Mrs Gillick began these proceedings against the area health authority and the DHSS, in which she seeks the following declarations (as amended before the master):
'(i) a declaration against the [area health authority] and the [DHSS] on a true construction of the said Notice and in the events which have happened, including and in particular the publication and the circulation of the said Notice, the said Notice has no authority in law and gives advice which is unlawful and wrong, and which adversely affects or which may adversely affect the welfare of [Mrs Gillick's] said children, and/or the rights of [Mrs Gillick] as parent and custodian of the said children, and/or the ability of [Mrs Gillick] properly and effectively to discharge her duties as such parent and custodian (ii) a declaration against the [area health authority] that no doctor or other professional person employed by the [area health authority] either in the Family Planning Service or otherwise may give any contraceptive and/or abortion advice and/or treatment to any child of [Mrs Gillick] below the age of 16 without the prior knowledge and consent of the said child's parent or guardian.'
Woolf J refused to grant the declarations sought by Mrs Gillick and dismissed the action (see [1984] 1 All ER 365, [1984] QB 581). The Court of Appeal (Eveleigh, Fox and Parker LJJ) ([1985] 1 All ER 533, [1985] 2 WLR 413) allowed the appeal and granted the declarations. Against that decision the DHSS now appeals. The central issue in the appeal is whether a doctor can ever, in any circumstances, lawfully give contraceptive advice or treatment to a girl under the age of 16 without her parents' consent. The effect of the Court of Appeal's judgment is to answer that question in the negative. The answer is subject certainly to one exception, in the case of an order by a competent court this exception was recognised by Parker LJ in the Court of Appeal (see [1985] 1 All ER 533 at 539, [1985] 2 WLR 413 at 420), and it is accepted in Mrs Gillick's printed case. But it is of theoretical rather than practical importance, because it would inevitably involve disclosing to the parents the doctor's advice to the girl, and thus would destroy its confidentiality, and also because the delay and expense of obtaining a court order makes frequent use of such procedure impracticable. There must, I think, be a second exception for cases in which the parents, or the sole surviving parent, have deliberately abandoned their parental responsibilities in such cases it would, in my opinion, be wrong to allow them to emerge from the shadows solely in order to veto contraceptive advice or treatment for their daughter. But these exceptions do not touch the principle which is at issue in the appeal. The guidance is addressed to regional health authorities and other authorities concerned in administering the national health service (the NHS), and the appeal therefore only directly concerns doctors and other persons working in the NHS. I shall refer throughout to doctors, to include brevitatis causa other professional persons working in the NHS.
The first statutory provision for contraceptive advice and treatment in the NHS was made by s 1 of the National Health Service (Family Planning) Act 1967. That section empowered local health authorities in England and Wales, with the approval of the Minister of Health, to make arrangements for giving advice on contraception, for medical examination of persons seeking such advice and for the supply of contraceptive substances and appliances. There appears to have been no similar provision applying to Scotland. The 1967 Act was repealed by the National Health Service Reorganisation Act 1973, which, by s 4, replaced the power of local health authorities to provide such advice and treatment with a duty on the Secretary of State to do so. A similar duty was placed on the Secretary of State for Scotland by s 8 of the National Health Service (Scotland) Act 1972. The 1973 provision for England and Wales has now been superseded by the National Health Service Act 1977, which by s 5(1)(b) imposes a duty on the Secretary of State--
'to arrange, to such extent as he considers necessary to meet all reasonable requirements in England and Wales, for the giving of advice on contraception, the medical examination of persons seeking advice on contraception, the treatment of such persons and the supply of contraceptive substances and appliances.'
These, and other, provisions show that Parliament regarded 'advice' and 'treatment' on contraception and the supply of appliances for contraception as essentially medical matters. So they are, but they may also raise moral and social questions on which many people feel deeply, and in that respect they differ from ordinary medical advice and treatment. None of the provisions to which I have referred placed any limit on the age (or the sex) of the persons to whom such advice or treatment might be supplied.
Three strands of argument are raised by the appeal. These are: (1) whether a girl under the age of 16 has the legal capacity to give valid consent to contraceptive advice and treatment including medical examination (2) whether giving such advice and treatment to a girl under 16 without her parents' consent infringes the parents' rights and (3) whether a doctor who gives such advice or treatment to a girl under 16 without her parents' consent incurs criminal liability. I shall consider these strands in order.
1. The legal capacity of a girl under 16
to consent to contraceptive advice, examination and
treatment
There are some indications in statutory provisions to which
we were referred that a girl under 16 years of age in England
and Wales does not have the capacity to give valid consent to
contraceptive advice and treatment. If she does not have the
capacity, then any physical examination or touching of her
body without her parents' consent would be an assault by the
examiner. One of those provisions is s 8 of the Family Law
Reform Act 1969, which is in the following terms:
'(1) The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be 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.'
The contention on behalf of Mrs Gillick was that sub-s (1) of s 8 shows that, apart from the subsection, the consent of a minor to such treatment would not be effective. But I do not accept that contention because sub-s (3) leaves open the question whether consent by a minor under the age of 16 would have been effective if the section had not been enacted. That question is not answered by the section, and sub-s (1) is, in my opinion, merely for the avoidance of doubt. Another statutory provision which was referred to in this connection is the National Health Service (General Medical and Pharmaceutical Services) Regulations 1974, SI 1974/160, as amended by the National Health Service (General Medical and Pharmaceutical Services) Amendment Regulations 1975, SI 1975/719. The regulations prescribe the mechanism by which the relationship of doctor and patient under the NHS is created. Contraceptive services, along with maternity medical services, are treated as somewhat apart from other medical services in respect that only a doctor who specially offers to provide contraceptive or maternity medical services is obliged to provide them: see the definition of 'medical card' and 'treatment' in reg 2(1) see also regs 6(1)(a) and 14(2)(a) and Sch 1, para 13. But nothing turns on this fact. Two points in those regulations have a bearing on the present question although, in my opinion, only an indirect bearing. The first is that by reg 14 any 'woman' may apply to a doctor to be accepted by him for the provision of contraceptive services. The word 'woman' is not defined so as to exclude a girl under 16 or under any other age. But reg 32 provides as follows:
'An application to a doctor for inclusion on his list . . . may be made, either--(a) on behalf of any person under 16 years of age, by the mother, or in her absence, the father, or in the absence of both parents the guardian or other adult person who has the care of the child or (b) on behalf of any other person who is incapable of making such an application by a relative or other adult person who has the care of such person. . .'
The words in para (b) which I have emphasised are said, by counsel for Mrs Gillick, to imply that a person under 16 years of age is incapable of applying to a doctor for services and therefore give some support to the argument on behalf of Mrs Gillick. But I do not regard the implication as a strong one because the provision is merely that an application 'may' be made by the mother or other parent or guardian and it applies to the doctor's list for the provision of all ordinary medical services as well as to his list for the provision of contraception services. I do not believe that a person aged 15, who may be living away from home, is incapable of applying on his own behalf for inclusion in the list of a doctor for medical services of an ordinary kind not connected with contraception. Another provision, in a different branch of medicine, which is said to carry a similar implication is contained in the Mental Health Act 1983, s 131, which provides for informal admission of patients to mental hospitals. It provides by sub-s (2):
'In the case of a minor who has attained the age of 16 years and is capable of expressing his own wishes, any such arrangements as are mentioned in subsection (1) above [for informal admission] may be made, carried out and determined notwithstanding any right of custody or control vested by law in his parent or guardian.'
That provision has only a remote bearing on the present question because there is no doubt that a minor under the age of 16 is in the custody of his or her parents. The question is whether such custody necessarily involves the right to veto contraceptive advice or treatment being given to the girl. Reference was also made to the Education Act 1944, s 48, which dealt with medical inspection and treatment of pupils at state schools. Section 48(3), which imposed on the local education authority a duty to provide for medical and dental inspection of pupils, was repealed and superseded by the National Health Service Reorganisation Act 1973, s 3 and Sch 5. The 1973 Act in turn was replaced by the National Health Service Act 1977, s 5(1)(a). Section 48(4) of the Education Act 1944, which has not been repealed, imposes a duty on the local education authority to arrange for encouraging pupils to take advantage of any medical treatment so provided, but it includes a proviso in the following terms:
'Provided that if the parent of any pupil gives to the authority notice that he objects to the pupil availing himself of any of the provision [for medical treatment etc] so made the pupil shall not be encouraged . . . so to do.'
I do not regard that provision as throwing light on the present question. It does not prohibit a child under the stipulated age from availing himself of medical treatment or an education authority from providing it for him. If the child, without encouragement from the education authority, 'wishes to avail himself of medical treatment' the section imposes no obstacle in his way. Accordingly, in my opinion, the proviso gives no support to the contention from Mrs Gillick, but on the contrary points in the opposite direction.
The statutory provisions to which I have referred do not differentiate so far as the capacity of a minor under 16 is concerned between contraceptive advice and treatment and other forms of medical advice and treatment. It would, therefore, appear that, if the inference which Mrs Gillick's advisers seek to draw from the provisions is justified, a minor under the age of 16 has no capacity to authorise any kind of medical advice or treatment or examination of his own body. That seems to me so surprising that I cannot accept it in the absence of clear provisions to that effect. It seems to me verging on the absurd to suggest that a girl or a boy aged 15 could not effectively consent, for example, to have a medical examination of some trivial injury to his body or even to have a broken arm set. Of course the consent of the parents should normally be asked, but they may not be immediately available. Provided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises. After all, a minor under the age of 16 can, within certain limits, enter into a contract. He or she can also sue and be sued, and can give evidence on oath. Moreover, a girl under 16 can give sufficiently effective consent to sexual intercourse to lead to the legal result that the man involved does not commit the crime of rape: see R v Howard [1965] 3 All ER 684 at 685, [1966] 1 WLR 13 at 15, when Lord Parker CJ said:
'. . . in the case of a girl under sixteen, the prosecution, in order to prove rape, must prove either that she physically resisted, or if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist . . . there are many girls under sixteen who know full well what it is all about and can properly consent.'
Accordingly, I am not disposed to hold now, for the first time, that a girl aged less than 16 lacks the power to give valid consent to contraceptive advice or treatment, merely on account of her age. Out of respect for the comprehensive and fully researched argument submitted by counsel for the DHSS I should notice briefly two old Acts to which he referred, but which do not appear to me to be helpful. One of these is the Act 4 & 5 Ph & M c 8 (abduction (1557)) for punishing 'such as shall take away maidens that be inheritors, being within the age of sixteen years, or that marry them, without consent of their parents'. That Act was evidently passed for the protection of property rather than for protection of the virtue of maidens. It was repealed by the Act 9 Geo 4 c 31 (offences against the person (1828)). We were referred to s 20 of the 1828 Act, but that section was concerned only with punishing abduction of any unmarried girl under the age of 16 and appears to me to have little or no bearing on the present problem.
On this part of the case accordingly I conclude that there is no statutory provision which compels me to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment provided that she has sufficient understanding and intelligence to know what they involve. I can deal with the case law more conveniently in what follows.
2. The parents' rights and duties in
respect of medical treatment of their child.
The amended guidance expressly states that the doctor will
proceed from the assumption that it would be 'most unusual'
to provide advice about contraception without parental
consent. It also refers to certain cases where difficulties
might arise if the doctor refused to promise that his advice
would remain confidential and it concludes that the
department realises that 'in such exceptional cases' the
decision whether or notto prescribe contraception must be for
the clinical judgment of a doctor. Mrs Gillick's contention
that the guidance adversely affects her rights and duties as
a parent must, therefore, involve the assertion of an
absolute right to be informed of and to veto such advice or
treatment being given to her daughters even in the 'most
unusual' cases which might arise (subject, no doubt, to the
qualifications applying to the case of court order or to
abandonment of parents' duties). It was, I think, accepted
both by Mrs Gillick and by the DHSS, and in any event I hold,
that parental rights to control a child do not exist for the
benefit of the parent. They exist for the benefit of the
child and they are justified only in so far as they enable
the parent to perform his duties towards the child, and
towards other children in the family. If necessary, this
proposition can be supported by reference to Blackstone's
Commentaries (1 Bl Com (17th edn, 1830) 452), where he
wrote: 'The power of parents over their children is derived
from . . . their duty.' The proposition is also consistent
with the provisions of the Guardianship of Minors Act 1971, s
1, as amended, as follows:
'Where in any proceedings before any court . . . (a) the legal custody or upbringing of a minor . . . is in question, the court, in deciding that question, shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father in respect of such legal custody, upbringing, administration or application is superior to that of themother, or the claim of the mother is superior to that of the father.'
From the parents' right and duty of custody flows their right and duty of control of the child, but the fact that custody is its origin throws but little light on the question of the legal extent of control at any particular age. Counsel for Mrs Gillick placed some reliance on the Children Act 1975. Section 85(1) provides that in that Act the expression 'the parental rights and duties' means 'all the rights and duties which by law the mother and father have in relation to a legitimate child and his property', but the subsection does not define the extent of the rights and duties which by law the mother and father have. Section 86 of the Act provides:
'In this Act, unless the context otherwise requires, ''legal custody'' means, as respects a child, so much of the parental rights and duties as relate to the person of the child (including the place and manner in which his time is spent) . . .'
In the Court of Appeal Parker LJ attached much importance to that section, especially to the words in brackets. He considered that the right relating to the place and manner in which the child's time is spent included the right, as he put it, 'completely to control the child' subject of course always to the intervention of the court. Parker LJ went on thus ([1985] 1 All ER 533 at 540, [1985] 2 WLR 413 at 423):
'Indeed there must, it seems to me, be such a right from birth to a fixed age unless whenever, short of majority, a question arises it must be determined, in relation to a particular child and a particular matter, whether he or she is of sufficient understanding to make a responsible and reasonable decision. This alternative appears to me singularly unattractive and impracticable, particularly in the context of medical treatment.'
My Lords, I have, with the utmost respect, reached a different conclusion from that of Parker LJ. It is, in my view, contrary to the ordinary experience of mankind, at least in Western Europe in the present century, to say that a child or a young person remains in fact under the complete control of his parents until he attains the definite age of majority, now 18 in the United Kingdom, and that on attaining that age he suddenly acquires independence. In practice most wise parents relax their control gradually as the child develops and encourage him or her to become increasingly independent. Moreover, the degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence and it would, in my opinion, be unrealistic for the courts not to recognise these facts. Social customs change, and the law ought to, and does in fact, have regard to such changes when they are of major importance. An example of such recognition is to be found in the view recently expressed in your Lordships' House by Lord Brandon, with which the other noble and learned Lords who were present agreed, in R v D [1984] 2 All ER 449 at 457, [1984] AC 778 at 806. Dealing with the question of whether the consent of a child to being taken away by a stranger would be a good defence to a charge of kidnapping, Lord Brandon said:
'In the case of a very young child, it would not have the understanding or the intelligence to give its consent, so that absence of consent would be a necessary inference from its age. In the case of an older child, however, it must, I think be a question of fact for a jury whether the child concerned has sufficient understanding and intelligence to give its consent if, but only if, the jury considers that a child has these qualities, it must then go on to consider whether it has been proved that the child did not give its consent. While the matter will always be for the jury alone to decide, I should not expect a jury to find at all frequently that a child under 14 had sufficient understanding and intelligence to give its consent.'
That expression of opinion seems to me entirely contradictory of the view expressed by Cockburn CJ in R v Howes (1860) 1 E & E 332 at 336--337, 121 ER 467 at 468--469:
'We repudiate utterly, as most dangerous, the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival at the age of discretion for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The Legislature has given us a guide, which we may safely follow, in pointing out sixteen as the age up to which the father's right to custody of his female child is to continue and short of which such a child has no discretion to consent to leaving him.'
The question for decision in that case was
different from that in the present, but the view that the
child's intellectual ability is irrelevant cannot, in my
opinion, now be accepted. It is a question of fact for the
judge (or jury) to decide whether a particular child can give
effective consent to contraceptive treatment. In times
gone by the father had almost absolute authority over his
children until they attained majority. A rather remarkable
example of such authority being upheld by the court was Re
Agar-Ellis, Agar-Ellis v Lascelles (1883) 24 Ch D
317, which was much relied on by the Court of Appeal. The
father in that case restricted the communication which his
daugher aged 17 was allowed to have with her mother, against
whose moral character nothing was alleged, to an extent that
would be universally condemned today as quite unreasonable.
The case has been much criticised in recent years and, in my
opinion, with good reason. In Hewer v Bryant [1969] 3
All ER 578 at 582, [1970] 1 QB 357 at 369 Lord
Denning MR said:
'I would get rid of the rule in Re Agar-Ellis and of the suggested exceptions to it. That case was decided in the year 1883. It reflects the attitude of a Victorian parent towards his children. He expected unquestioning obedience to his commands. If a son disobeyed, his father would cut him off with 1s. If a daughter had an illegitimate child, he would turn her out of the house. His power only ceased when the child became 21. I decline to accept a view so much out of date. The common law can, and should, keep pace with the times. It should declare, in conformity with the recent report on the Age of Majority (Report of the Committee on the Age of Majority (Cmnd 3342) under the chairmanship of Latey J, published in July 1967), that the legal right of a parent to the custody of a child ends at the eighteenth birthday and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.'
I respectfully agree with every word of that and especially with the description of the father's authority as a dwindling right. In J v C [1969] 1 All ER 788, [1970] AC 668 Lord Guest and Lord MacDermott referred to the decision in Re Agar-Ellis as an example of the almost absolute power asserted by the father over his children before the Supreme Court of Judicature Act 1873 and plainly thought such an assertion was out of place at the present time: see per Lord MacDermott ([1969] 1 All ER 788 at 814--815, [1970] AC 668 at 703--704). In R v D [1984] 2 All ER 449, [1984] AC 778 Lord Brandon cited Re Agar-Ellis an example of the older view of a father's authority which his Lordship and the other members of the House rejected. In my opinion, the view of absolute paternal authority continuing until a child attains majority which was applied in Re Agar-Ellis is so out of line with present-day views that it should no longer be treated as having any authority. I regard it as a historical curiosity. As Fox LJ pointed out in the Court of Appeal (see [1985] 1 All ER 533 at 554, [1985] 2 WLR 413 at 439), the Agar-Ellis cases (1878) 10 Ch D 49, (1883) 24 Ch D 317 seemed to have been regarded as somewhat extreme even in their own day, as they were quickly followed by the Guardianship of Infants Act 1886, which, by s 5, provided that the court may--
'upon the application of the mother of any infant [whether under 16 or not] . . . make such order as it may think fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents . . .'
Once the rule of the parents' absolute authority over minor children is abandoned, the solution to the problem in this appeal can no longer be found by referring to rigid parental rights at any particular age. The solution depends on a judgment of what is best for the welfare of the particular child. Nobody doubts, certainly I do not doubt, that in the overwhelming majority of cases the best judges of a child's welfare are his or her parents. Nor do I doubt that any important medical treatment of a child under 16 would normally only be carried out with the parents' approval. That is why it would and should be 'most unusual' for a doctor to advise a child without the knowledge and consent of the parents on contraceptive matters. But, as I have already pointed out, Mrs Gillick has to go further if she is to obtain the first declaration that she seeks. She has to justify the absolute right of veto in a parent. But there may be circumstances in which a doctor is a better judge of the medical advice and treatment which will conduce to a girl's welfare than her parents. It is notorious that children of both sexes are often reluctant to confide in their parents about sexual matters, and the DHSS guidance under consideration shows that to abandon the principle of confidentiality for contraceptive advice to girls under 16 might cause some of them not to seek professional advice at all, with the consequence of exposing them to 'the immediate risks of pregnancy and of sexually-transmitted diseases'. No doubt the risk could be avoided if the patient were to abstain from sexual intercourse, and one of the doctor's responsibilities will be to decide whether a particular patient can reasonably be expected to act on advice to abstain. We were told that in a significant number of cases such abstinence could not reasonably be expected. An example is Re P (a minor) (1981) 80 LGR 301, in which Butler-Sloss J ordered that a girl aged 15 who had been pregnant for the second time and who was in the care of a local authority should be fitted with a contraceptive appliance because, as the judge is reported to have said (at 312)--
'I assume that it is impossible for this local authority to monitor her sexual activities, and, therefore, contraception appears to be the only alternative.'
There may well be other cases where the doctor feels that because the girl is under the influence of her sexual partner or for some other reason there is no realistic prospect of her abstaining from intercourse. If that is right it points strongly to the desirability of the doctor being entitled in some cases, in the girl's best interest, to give her contraceptive advice and treatment if necessary without the consent or even the knowledge of her parents. The only practicable course is, in my opinion, to entrust the doctor with a discretion to act in accordance with his view of what is best in the interests of the girl who is his patient. He should, of course, always seek to persuade her to tell her parents that she is seeking contraceptive advice, and the nature of the advice that she receives. At least he should seek to persuade her to agree to the doctor's informing the parents. But there may well be cases, and I think there will be some cases, where the girl refuses either to tell the parents herself or to permit the doctor to do so and in such cases the doctor will, in my opinion, be justified in proceeding without the parents' consent or even knowledge provided he is satisfied on the following matters: (1) that the girl (although under 16 years of age) will understand his advice (2) that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice (3) that she is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment (4) that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer (5) that her best interests require him to give her contraceptive advice, treatment or both without the parental consent. That result ought not to be regarded as a licence for doctors to disregard the wishes of parents on this matter whenever they find it convenient to do so. Any doctor who behaves in such a way would, in my opinion, be failing to discharge his professional responsibilities, and I would expect him to be disciplined by his own professional body accordingly. The medical profession have in modern times come to be entrusted with very wide discretionary powers going beyond the strict limits of clinical judgment and, in my opinion, there is nothing strange about entrusting them with this further responsibility which they alone are in a position to discharge satisfactorily.
3. Is a doctor who gives contraceptive
advice or treatment to a girl under 16 without her parents'
consent likely to incur criminal liability?
The submission was made to Woolf J on behalf of Mrs Gillick
that a doctor who provided contraceptive advice and treatment
to a girl under 16 without her parents' authority would be
committing an offence under s 28 of the Sexual Offences Act
1956 by aiding and abetting the commission of unlawful sexual
intercourse. When the case reached the Court of Appeal
counsel on both sides conceded that whether a doctor who
followed the guidelines would be committing an offence or not
would depend on the circumstances. It would depend on the
doctor's intentions this appeal is concerned with doctors who
honestly intend to act in the best interests of the girl, and
I think it is unlikely that a doctor who gives contraceptive
advice or treatment with that intention would commit an
offence under s 28. It must be remembered that a girl under
16 who has sexual intercourse does not thereby commit an
offence herself, although her partner does: see the Sexual
Offences Act 1956, ss 5 and 6. In any event, even if the
doctor would be committing an offence, the fact that he had
acted with the parents' consent would not exculpate him as
Woolf J pointed out ([1984] 1 All ER 365 at 373, [1984] QB
581 at 595). Accordingly, I regard this contention as
irrelevant to the question that we have to answer in this
appeal. Parker LJ in the Court of Appeal dealt at some length
with the provisions of criminal lawintended to protect girls
under the age of 16 from being seduced, and perhaps also to
protect them from their own weakness. Parker LJ expressed his
conclusion on this part of the case as follows ([1985] 1 All
ER 533 at 550, [1985] 2 WLR 413 at 435):
'It appears to me that it is wholly incongruous, when the act of intercourse is criminal, when permitting it to take place on one's premises is criminal and when, if the girl were under 13, failing to report an act of intercourse to the police would up to 1967 have been criminal, that either the department or the area health authority should provide facilities which would enable girls under 16 the more readily to commit such acts. It seems to me equally incongruous to assert that doctors have the right to accept the young, down, apparently, to any age, as patients, and to provide them with contraceptive advice and treatment without reference to their parents and even against their known wishes.'
My Lords, the first of those two sentences is directed to the question, which is not in issue in this appeal, of whether contraceptive facilities should be available at all under the NHS for girls under 16. I have already explained my reasons for thinking that the legislation does not limit the duty of providing such facilities to women of 16 or more. The second sentence, which does bear directly on the question in the appeal, does not appear to me to follow necessarily from the first and with respect I cannot agree with it. If the doctor complies with the first of the conditions which I have specified, that is to say if he satisfies himself that the girl can understand his advice, there will be no question of his giving contraceptive advice to very young girls. For those reasons I do not consider that the guidance interferes with the parents' rights.
The second declaration
The second declaration is directed only against the area health authority. Its practical importance would be minimal because doctors are not 'employed' by the area health authority in the family planning service and, if they were, the declaration could easily be avoided by the girl going to a doctor in a different area. The Court of Appeal made the declaration sought, and the authority has not appealed against its decision. I am, therefore, of opinion that we should not reverse the decision of the Court of Appeal on this part of the case. But it is clearly inconsistent with the views I have expressed on the first declaration, and I agree with Lord Scarman that it should be overruled. I would allow the appeal against the first declaration granted by the Court of Appeal, and I would overrule the second declaration as being erroneous.
JUDGMENT BY-2: LORD SCARMANJUDGMENT-2: LORD SCARMAN. My Lords, I have had the advantage of reading in draft the speech delivered by my noble and learned friend Lord Fraser. Agreeing with it, I shall endeavour in delivering my opinion to avoid repetition. The importance of the case is, however, such that I believe it necessary, even at the cost of some repetition, to deliver my opinion in my own words. The case is the beginning, not the conclusion, of a legal development in a field glimpsed by one or two judges in recent times (notably Butler-Sloss J in Re P (a minor) (1981) 80 LGR 301) but not yet fully explored. Mrs Gillick, even though she may lose the appeal, has performed a notable public service in directing judicial attention to the problems arising from the interaction of parental right and a doctor's duty in a field of medicine unknown to our fathers but of immense consequence to our society. The contraceptive pill has introduced a new independence, and offers new options, for women but has it in the process undermined parental right and duty? In my judgment, the answer is No, even though parental right may not be as extensive or as long lasting as she believes it to be.
Victoria Gillick, mother of five daughters under the age of 16, challenges the lawfulness of a memorandum of guidance issued by the Department of Health and Social Security which she says encourages and in certain circumstances recommends health authorities, doctors and others concerned in operating the department's family planning services to provide contraceptive advice and treatment to girls under the age of 16 without the knowledge or consent of a parent. Mrs Gillick is a wife and mother living in a united family with her husband and their children. The husband supports the action being taken, as they both see it, to protect their daughters. Nothing further need be said of their family situation in deciding this appeal. Mrs Gillick began her proceedings by the issue of a writ against two defendants, the health authority for the area in which she lives and the department. She claims in an ordinary civil action declaratory relief against both defendants that the guidance is unlawful, and against the area health authority alone a declaration that no doctor or other person in its employ may give contraception or abortion advice to Mrs Gillick's children under the age of 16 without her prior knowledge and consent. The area health authority has taken no part in the litigation, but the department has fought the case strenuously. The appeal to the House is that of the department the health authority has not appealed and is not represented.
The written case submitted on Mrs Gillick's behalf to the House formulates three propositions of law, any one of which, if made good, would suffice to entitle her to relief. They are as follows: (i) parental rights should be protected from any invasion or interference neither authorised by a competent court nor expressly authorised by statute (the parental rights case) (ii) the provision of contraceptive treatment to girls under the age of 16 either constitutes criminal conduct in itself or is so closely analogous thereto as to be contrary to public policy (the criminal law case) (iii) a girl below the age of 16 is not capable in law of giving a valid consent to medical treatment and in the particular context of this case to contraceptive or abortion treatment (the age of consent point).
Before, however, considering these
propositions, it is necessary to clear out of the way certain
procedural questions, which, though not urged on our
attention, do call for a brief consideration.
Procedure
Three procedural questions have emerged in the course of the
litigation. First, Mr Simon Brown, who before his elevation
to the Bench had the conduct of the case as counsel for the
department, raised at the trial the question as to the
propriety of the civil court granting a declaration in a case
which involved the criminal law. The judge saw no reason why
he should be inhibited on this ground from dealing with the
issues in the action and I agree with him. It was not
contended that the issue of the guidance was itself a crime
the case against the department was simply that the guidance,
if followed, would result in unlawful acts and that the
department by issuing it was exercising a statutory
discretion in a wholly unreasonable way, i e the classical
Wednesbury case for judicial review: see Associated
Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2
All ER 680, [1948] 1 KB 223. The second question is as
to the propriety of proceeding in this case by ordinary civil
action. Should not Mrs Gillick have proceeded by way of
judicial review under RSC Ord 53? No point was taken at trial
or in the Court of Appeal against Mrs Gillick that she should
have proceeded not by issuing a writ but by applying for
judicial review. Woolf J did, however, mention the matter
only to hold that there was a relevant precedent for
proceeding by writ in this House's decision in Royal
College of Nursing of the UK v Dept of Health and Social
Security [1981] 1 All ER 545, [1981] AC 800. The
point having been brought to the attention of the House I
think it desirable to consider it if only because of the
later decision of the House in O'Reilly v Mackman
[1982] 3 All ER 1124 at 1134, [1983] 2 AC 237 at 285, where
Lord Diplock, with whose opinion their other Lordships
agreed, laid down a rule in these terms:
'Now that those disadvantages [i e those previously associated with prerogative order procedure] to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained on an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule [my emphasis] be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Ord 53 for the protection of such authorities.'
If there be in the present case an abuse of the process of the court, the House cannot overlook it, even if the parties are prepared to do so, and even though the writ in this case was issued before the decision of the House in O'Reilly's case. Mrs Gillick's action is essentially to protect what she alleges to be her rights as a parent under private law. Although she is proceeding against two public authorities and invokes the criminal law and public policy in support of her case, she claims as a parent whose right of custody and guardianship in respect of her children under the age of 16 is (she says) threatened by the guidance given by the department to area health authorities, doctors and others concerned in the provision by the department of a family health service. This is a very different case from O'Reilly v Mackman, where it could not be contended that there was any infringement or threat of infringement of any right derived from private law. For the appellants in O'Reilly's case were convicted prisoners faced with forfeiture of remission, and they were held to have not a right to remission of their prison sentences but merely 'a legitimate expectation' which could, if the necessary facts were established, entitle them 'to a remedy in public law'. They had, therefore, no private right in the matter, and could rely only on the 'public law' doctrine of legitimate expectation. It is unnecessary to embark on an analysis of the newly fledged distinction in English law between public and private law, for I do not see Mrs Gillick's claim as falling under the embargo imposed by O'Reilly's case. If I should be wrong in this view, I would nevertheless think that the private law content of her claim was so great as to make her case an exception to the general rule. Lord Diplock recognised that the general rule which he was laying down admitted of exceptions, including cases--
'where the invalidity of the [public authority's] decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons.'
(See [1982] 3 All ER 1124 at 1134, [1982] 2 AC 237 at 285.) Both these exceptions can be said to apply in the present case. Like Lord Diplock, I think that procedural problems in the field of public law must be left to be decided on a case to case basis. Mrs Gillick was, in my opinion, fully entitled to proceed by ordinary action, even though she could also have proceeded by way of judicial review. The third and final procedural question is a mere technicality as such, it creates (no lawyer would be surprised) more trouble than the other two. If the House should allow department's appeal against the guidance declaration, what is to be done about the other declaration granted exclusively against the area health authority? As a matter of common sense, if Mrs Gillick fails to establish that the department's guidance is unlawful, she cannot on the evidence in this case establish her entitlement to the other declaration against the health authority. The Court of Appeal treated the second declaration as consequential on the guidance declaration, which on the evidence it was plainly right to do. But there is a difficulty in allowing an appeal where there is no appellant and no appeal. Fortunately in this case there is no issue between the parties as to costs. If the department succeeds, it does not ask for costs against Mrs Gillick here or below and the area health authority has incurred no costs. Two courses are open to the House: one would be to ignore the technicalities, allow the appeal (if that be the view of the House), and set aside both declarations the other, which is strictly correct, would be to allow the department's appeal and to declare that the reasoning was also applicable to the Court of Appeal's decision in favour of the health authority, which must, therefore, be held to be overruled. If the second course should be taken, the only order to be made by the House would be to allow the department's appeal and set aside the 'guidance' declaration. I favour the second course.
The department's guidance
In 1974 the department assumed statutory responsibility for
the provision of family planning services on a national
basis. This involved a reorganisation which included a
transfer of services from the agencies previously concerned
to area health authorities. In the course of the
reorganisation, which took some two years to complete, the
department issued guidance as to the duties and
responsibilities of doctors and others concerned with the
provision of such services. It was empowered so to do by its
assumption, pursuant to statute, of responsibility for the
provision of such services. In May 1974 the department
circulated a memorandum of guidance HN (80) 46 it included a
section (section G) as to the provision of services to young
people. The text of section G aroused some public concern,
and in December 1980 a revised section G was issued to
replace the earlier text. It is this revision which lies at
the heart of the case, being the subject of Mrs Gillick's
challenge. I set it out in full:
'REVISED SECTION G--THE YOUNG
Clinic sessions should be available for people of all ages, but it may be helpful to make separate, less formal arrangements for young people. The staff should be experienced in dealing with young people and their problems. There is widespread concern about counselling and treatment for children under 16. Special care is needed not to undermine parental responsibility and family stability. The Department would therefore hope that in any case where a doctor or other professional worker is approached by a person under the age of 16 for advice in these matters, the doctor, or other professional, will always seek to persuade the child to involve the parent or guardian (or other person in loco parentis) at the earliest stage of consultation, and will proceed from the assumption that it would be most unusual to provide advice about contraception without parental consent. It is, however, widely accepted that consultations between doctors and patients are confidential and the Department recognises the importance which doctors and patients attach to this principle. It is a principle which applies also to the other professions concerned. To abandon this principle for children under 16 might cause some not to seek professional advice at all. They could then be exposed to the immediate risks of pregnancy and of sexually-transmitted disease, as well as other long-term physical, psychological and emotional consequences which are equally a threat to stable family life. This would apply particularly to young people whose parents are, for example, unconcerned, entirely unresponsive, or grossly disturbed. Some of these young people are away from their parents and in the care of local authorities or voluntary organisations standing in loco parentis. The Department realises that in such exceptional cases the nature of any counselling must be a matter for the doctor or other professional worker concerned and that the decision whether or not to prescribe contraception must be for the clinical judgment of a doctor.'
The first question in the appeal is simply:
what is the true meaning of this text? Does it, or does it
not, permit doctors concerned in the provision of a statutory
service to prescribe contraceptive treatment for a girl under
16 without the knowledge and consent of her parents? And, if
it does, in what circumstances? There can be no doubt
that it does permit doctors to prescribe in certain
circumstances contraception for girls under 16 without the
knowledge and consent of a parent or guardian. (In this
opinion I shall use the term 'parent' to include 'guardian'.)
The text is not, however, clear as to the circumstances
(variously described as 'unusual' and 'exceptional') which
justify a doctor in so doing. The House must be careful not
to construe the guidance as though it was a statute or even
to analyse it in the way appropriate to a judgment. The
question to be asked is: what would a doctor understand to be
the guidance offered to him if he should be faced with a girl
under 16 seeking contraceptive treatment without the
knowledge or consent of her parents? He would know that
it was his duty to seek to persuade the girl to let him bring
into consultation her parents (or one of them). If she
refused, he (or the counsellor to whom the girl had gone)
must ask himself whether the case was one of those
exceptional cases in which the guidance permitted a doctor to
prescribe contraception without the knowledge or consent of a
parent (provided always that in the exercise of his clinical
judgment he thought this course to be in the true interest of
his patient). In my judgment the guidance clearly implies
that in exceptional cases the parental right to make
decisions as to the care of their children, which derives
from their right of custody, can lawfully be overridden, and
that in such cases the doctor may without parental
consultation or consent prescribe contraceptive treatment in
the exercise of his clinical judgment. And the guidance
reminds the doctor that in such cases he owes the duty of
confidentiality to his patient, by which is meant that the
doctor would be in breach of his duty to her if he did
communicate with her parents. The guidance leaves two
areas of the doctor's responsibility in some obscurity.
Though it provides illustrations of exceptional cases, it
offers no definition. And it gives no clue as to what is
meant by 'clinical judgment' other than that it must at least
include the professional judgment of a doctor as to what is
the medically appropriate advice or treatment to be offered
to his patient. This lack of definition does not, in my
judgment, assist Mrs Gillick. If, contrary to her submission,
the law recognises that exceptional cases can arise in which
it is lawful for a doctor to prescribe contraceptive
treatment for a girl under 16 without the knowledge and
consent of a parent, the guidance would be within the law
notwithstanding its lack of precision, unless its vagueness
created so obscure a darkness that it could reasonably be
understood by a doctor as authorising him to prescribe
without the parent's consent whenever he should think fit.
I do not find on a fair reading of the guidance
anything to obscure or confuse its basic message that a
doctor is only in exceptional circumstances to prescribe
contraception for a young person under the age of 16 without
the knowledge and consent of a parent. No reasonable person
could read it as meaning that the doctor's discretion could
ordinarily override parental right. Illustrations are given
in the text of exceptional cases in which the doctor may take
the 'most unusual' course of not consulting the parent. Only
in exceptional cases does the guidance contemplate him
exercising his clinical judgment without the parent's
knowledge and consent. Lastly, there really can be no
compulsion in law on a government department to spell out to
a doctor what is meant by 'clinical judgment'.
The question in the appeal
It is only if the guidance permits or encourages unlawful
conduct in the provision of contraceptive services that it
can be set aside as being the exercise of a statutory
discretionary power in an unreasonable way. The
question, therefore, for the House is: can a doctor in any
circumstances lawfully prescribe contraception for a girl
under 16 without the knowledge and consent of a parent?
Before discussing the question, I put out of the way the two exceptions which I understand both parties to the appeal accept, namely the order of a competent court and emergency. Nobody disputes the existence of the court exception, nor does the other situation call for more than a brief mention. If, as is clear in the light of s 5 of the National Health Service Act 1977 (re-enacting earlier legislation) and s 41 of the National Health Service (Scotland) Act 1978, contraceptive medical treatment is recognised as a legitimate and beneficial treatment in cases in which it is medically indicated, it must be an available option for the doctor in an emergency where treatment is urgently needed and the consent of the patient or his parent cannot be obtained either in time or at all. And the case of a teenage girl abandoned by her parents and not yet received into the care of a local authority or placed under the protection of a responsible adult in loco parentis can be seen to be a true emergency. Both Mrs Gillick, as I understand her case, and the department accept these exceptions to the general rule that a parent must be consulted and give consent and I say no more than that it would be unthinkable for the law not to recognise them.
Parental right and the age of
consent
Mrs Gillick relies on both the statute law and the case law
to establish her proposition that parental consent is in all
other circumstances necessary. The only statutory provision
directly in point is s 8 of the Family Law Reform Act 1969.
Subsection (1) of the section provides that the consent of a
minor who has attained the age of 16 to any surgical, mental
or dental 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 that the consent of his parent or
guardian need not be obtained. Subsection (3) of the section
provides:
'Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.'
I cannot accept the submission made on Mrs Gillick's behalf that sub-s (1) necessarily implies that prior to its enactment the consent of a minor to medical treatment could not be effective in law. Subsection (3) leaves open the question whether the consent of a minor under 16 could be an effective consent. Like my noble and learned friend Lord Fraser, I read the section as clarifying the law without conveying any indication as to what the law was before it was enacted. So far as minors under 16 are concerned, the law today is as it was before the enactment of the section. Nor do I find in the provisions of the statute law to which Parker LJ refers in his judgment in the Court of Appeal (see [1985] 1 All ER 533, [1985] 2 WLR 413) any encouragement, let alone any compelling reason, for holding that Parliament has accepted that a child under 16 cannot consent to medical treatment. I respectfully agree with the reasoning and conclusion of my noble and learned friend Lord Fraser on this point. The law has, therefore, to be found by a search in the judge-made law for the true principle. The legal difficulty is that in our search we find ourselves in a field of medical practice where parental right and a doctor's duty may point us in different directions. This is not surprising. Three features have emerged in today's society which were not known to our predecessors: (1) contraception as a subject for medical advice and treatment (2) the increasing independence of young people and (3) the changed status of women. In times past contraception was rarely a matter for the doctor but with the development of the contraceptive pill for women it has become part and parcel of every-day medical practice, as is made clear by the department's Handbook of Contraceptive Practice (1984 revision) esp para 1.2. Family planning services are now available under statutory powers to all without any express limitation as to age or marital status. Young people, once they have attained the age of 16, are capable of consenting to contraceptive treatment, since it is medical treatment and, however extensive be parental right in the care and upbringing of children, it cannot prevail so as to nullify the 16-year-old's capacity to consent which is now conferred by statute. Furthermore, women have obtained by the availability of the pill a choice of life-style with a degree of independence and of opportunity undreamed of until this generation and greater, I would add, than any law of equal opportunity could by itself effect. The law ignores these developments at its peril. The House's task, therefore, as the supreme court in a legal system largely based on rules of law evolved over the years by the judicial process is to search the overfull and cluttered shelves of the law reports for a principle or set of principles recognised by the judges over the years but stripped of the detail which, however appropriate in their day, would, if applied today, lay the judges open to a justified criticism for failing to keep the law abreast of the society in which they live and work. It is, of course, a judicial commonplace to proclaim the adaptability and flexibility of the judge-made common law. But this is more frequently proclaimed than acted on. The mark of the great judge from Coke through Mansfield to our day has been the capacity and the will to search out principle, to discard the detail appropriate (perhaps) to earlier times and to apply principle in such a way as to satisfy the needs of his own time. If judge-made law is to survive as a living and relevant body of law, we must make the effort, however inadequately, to follow the lead of the great masters of the judicial art. In this appeal, therefore, there is much in the earlier case law which the House must discard almost everything I would say but its principle. For example, the horrendous Ellis decisions (see Re Agar-Ellis, Agar-Ellis v Lascelles (1878) 10 Ch D 49, (1883) 24 Ch D 317) of the late nineteenth century asserting the power of the father over his child were rightly remaindered to the history books by the Court of Appeal in Hewer v Bryant [1969]3 All ER 578, [1970] 1 QB 357, an important case to which I shall return later. Yet the decisions of earlier generations may well afford clues to the true principle of the law: e g R v Howes (1860) 3 E & E 332 at 336, 121 ER 467 at 468, which I also later quote. It is the duty of this House to look at, through and past the decisions of earlier generations so that it may identify the principle which lies behind them. Even Lord Eldon (no legal revolutionary) once remarked, when invited to study precedent (the strength of which he never underrated):
'. . . all law ought to stand upon principle, and unless decision has removed out of the way all argument and all principle so as to make it impossible to apply them to the case before you, you must find out what is the principle upon which it must be decided.'
(See Queensberry Leases Case (1819) 1 Bli 339 at 486--487, 4 ER 127 at 179, quoted by Lord Campbell Lives of the Lord Chancellors (4th edn, 1857) vol 10, ch 213, p 244.) Approaching the earlier law in this way, one finds plenty of indications as to the principles governing the law's approach to parental right and the child's right to make his or her own decision. Parental rights clearly do exist, and they do not wholly disappear until the age of majority. Parental rights relate to both the person and the property of the child: custody, care and control of the person and guardianship of the property of the child. But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law, as I shall endeavour to show, is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child. The principle has been subjected to certain age limits set by statute for certain purposes and in some cases the courts have declared an age of discretion at which a child acquires before the age of majority the right to make his (or her) own decision. But these limitations in no way undermine the principle of the law, and should not be allowed to obscure it. Let me make good, quite shortly, the proposition of principle. First, the guardianship legislation. Section 5 of the Guardianship of Infants Act 1886 began the process which is now complete of establishing the equal rights of mother and father. In doing so the legislation, which is currently embodied in s 1 of the Guardianship of Minors Act 1971, took over from the Chancery courts a rule which they had long followed (it was certainly applied by Lord Eldon during his quarter of a century as Lord Chancellor, as Parker LJ in this case (see [1985] 1 All ER 533 at 541, [1985] 2 WLR 413 at 424), quoting Heilbron J, reminds us) that when a court has before it a question as to the care and upbringing of a child it must treat the welfare of the child as the paramount consideration in determining the order to be made. There is here a principle which limits and governs the exercise of parental rights of custody, care and control. It is a principle perfectly consistent with the law's recognition of the parent as the natural guardian of the child but it is also a warning that parental right must be exercised in accordance with the welfare principle and can be challenged, even overridden, if it be not. Second, there is the common law's understanding of the nature of parental right. We are not concerned in this appeal to catalogue all that is contained in what Sachs LJ has felicitously described as the 'bundle of rights' which together constitute the rights of custody, care and control (see Hewer v Bryant [1969] 3 All ER 578 at 585, [1970] 1 QB 357 at 373). It is abundantly plain that the law recognises that there is a right and a duty of parents to determine whether or not to seek medical advice in respect of their child, and, having received advice, to give or withhold consent to medical treatment. The question in the appeal is as to the extent and duration of the right and the circumstances in which outside the two admitted exceptions to which I have earlier referred it can be overridden by the exercise of medical judgment. As Parker and Fox LJJ noted in the Court of Appeal, the modern statute law recognises the existence of parental right: e g ss 85 and 86 of the Children Act 1975 and ss 2, 3 and 4 of the Child Care Act 1980. It is derived from parental duty. A most illuminating discussion of parental right is to be found in Blackstone's Commentaries (1 Bl Com (17th edn, 1830) vol 1, chs 16 and 17). He analyses the duty of the parent as the 'maintenance . . . protection, and . . . education' of the child (at p 446). He declares that the power of parents over their children is derived from their duty and exists 'to enable the parent more effectually to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it' (at p 452). In ch 17 he discusses the relation of guardian and ward. It is, he points out, a relation 'derived out of [the relation of parent and child]: the guardian being only a temporary parent, that is, for so long a time as the ward is an infant, or under age' (at p 460). A little later in the same chapter he again emphasises that the power and reciprocal duty of a guardian and ward are the same, pro tempore, as that of a father and child and adds that the guardian, when the ward comes of age (as also the father who becomes guardian 'at common law' if an estate be left to his child), must account to the child for all that he has transacted on his behalf (at pp 462--463). He then embarks on a discussion of the different ages at which for different purposes a child comes of sufficient age to make his own decision and he cites examples, viz a boy might at 12 years old take the oath of allegiance at 14 he might consent to marriage or choose his guardian 'and, if his discretion be actually proved, may make his testament of his personal estate' at 18 he could be an executor: all these rights and responsibilities being capable of his acquiring before reaching the age of majority at 21 (at p 463). The two chapters provide a valuable insight into the principle and flexibility of the common law. The principle is that parental right or power of control of the person and property of his child exists primarily to enable the parent to discharge his duty of maintenance, protection and education until he reaches such an age as to be able to look after himself and make his own decisions. Blackstone does suggest that there was a further justification for parental right, viz as a recompense for the faithful discharge of parental duty but the right of the father to the exclusion of the mother and the reward element as one of the reasons for the existence of the right have been swept away by the guardianship of minors legislation to which I have already referred. He also accepts that by statute and by case law varying ages of discretion have been fixed for various purposes. But it is clear that this was done to achieve certainty where it was considered necessary and in no way limits the principle that parental right endures only so long as it is needed for the protection of the child. Although statute has intervened in respect of a child's capacity to consent to medical treatment from the age of 16 onwards, neither statute nor the case law has ruled on the extent and duration of parental right in respect of children under the age of 16. More specifically, there is no rule yet applied to contraceptive treatment, which has special problems of its own and is a late comer in medical practice. It is open, therefore, to the House to formulate a rule. The Court of Appeal favoured a fixed age limit of 16, basing itself on a view of the statute law which I do not share and on its view of the effect of the older case law which for the reasons already given I cannot accept. It sought to justify the limit by the public interest in the law being certain. Certainty is always an advantage in the law, and in some branches of the law it is a necessity. But it brings with it an inflexibility and a rigidity which in some branches of the law can obstruct justice, impede the law's development and stamp on the law the mark of obsolescence where what is needed is the capacity for development. The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose on the process of 'growing up' fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change. If certainty be thought desirable, it is better that the rigid demarcations necessary to achieve it should be laid down by legislation after a full consideration of all the relevant factors than by the courts, confined as they are by the forensic process to the evidence adduced by the parties and to whatever may properly fall within the judicial notice of judges. Unless and until Parliament should think fit to intervene, the courts should establish a principle flexible enough to enable justice to be achieved by its application to the particular circumstances proved by the evidence placed before them. The underlying principle of the law was exposed by Blackstone and can be seen to have been acknowledged in the case law. It is that parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision. Lord Denning MR captured the spirit and principle of the law when he said in Hewer v Bryant [1969] 3 All ER 578 at 582, [1970] 1 QB 337 at 369:
'I would get rid of the rule in Re Agar-Ellis ((1883) 24 Ch D 317) and of the suggested exceptions to it. That case was decided in the year 1883. It reflects the attitude of a Victorian parent towards his children. He expected unquestioning obedience to his commands. If a son disobeyed, his father would cut him off with 1s. If a daughter had an illegitimate child, he would turn her out of the house. His power only ceased when the child became 21. I decline to accept a view so much out of date. The common law can, and should, keep pace with the times. It should declare, in conformity with the recent report on the Age of Majority (Report of the Committee on the Age of Majority (Cmnd 3342) under the chairmanship of Latey J, published in July 1967), that the legal right of a parent to the custody of a child ends at the eighteenth birthday and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.'
But his is by no means a solitary voice. It is consistent with the opinion expressed by the House in J v C [1969] 1 All ER 788, [1970] AC 668, where their Lordships clearly recognised as out of place the assertion in the Agar-Ellis cases (1878) 10 Ch D 49, (1883) 24 Ch D 318 of a father's power bordering on 'patria potestas'. It is consistent with the view of Lord Parker CJ in R v Howard [1965] 3 All ER 684 at 685, [1966] 1 WLR 13 at 15, where he ruled that in the case of a prosecution charging rape of a girl under 16 the Crown must prove either lack of her consent or that she was not in a position to decide whether to consent or resist and added the comment that 'there are many girls who know full well what it is all about and can properly consent'. And it is consistent with the views of the House in the recent criminal case where a father was accused of kidnapping his own child, R v D [1984] 2 All ER 449 [1984] AC 778, a case to which I shall return. For the reasons which I have endeavoured to develop, the case law of the nineteenth and earlier centuries is no guide to the application of the law in the conditions of today. The Agar-Ellis cases (the power of the father) cannot live with the modern statute law. The habeas corpus 'age of discretion' cases are also no guide as to the limits which should be accepted today in marking out the bounds of parental right, of a child's capacity to make his or her own decision and of a doctor's duty to his patient. Nevertheless the 'age of discretion' cases are helpful in that they do reveal the judges as accepting that a minor can in law achieve an age of discretion before coming of full age. The 'age of discretion' cases are cases in which a parent or guardian (usually the father) has applied for habeas corpus to secure the return of his child who has left home without his consent. The courts would refuse an order if the child had attained the age of discretion, which came to be regarded as 14 for boys and 16 for girls, and did not wish to return. The principle underlying them was plainly that an order would be refused if the child had sufficient intelligence and understanding to make up his own mind. A passage from the judgment of Cockburn CJ in R v Howes (1860) 3 E & E 332 at 336--337, 121 ER 467 at 468--469, which Parker LJ quoted in the Court of Appeal, illustrates their reasoning and shows how a fixed age was used as a working rule to establish an age at which the requisite 'discretion' could be held to be achieved by the child. Cockburn CJ said:
'Now the cases which have been decided on this subject shew that, although a father is entitled to the custody of his children till they attain the age of twenty-one, this Court will not grant a habeas corpus to hand a child which is below that age over to its father, provided that it has attained an age of sufficient discretion to enable it to exercise a wise choice for its own interests. The whole question is, what is that age of discretion? We repudiate utterly, as most dangerous, the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The legislature has given us a guide, which we may safely follow, in pointing out sixteen as the age up to which the father's right to the custody of his female child is to continue and short of which such a child has no discretion to consent to leaving him.'
The principle is clear and a fixed age of discretion was accepted by the courts by analogy from the Abduction Acts (the first being the Act 4 & 5 Ph & M c 8 (1557)). While it is unrealistic today to treat a sixteenth century Act as a safe guide in the matter of a girl's discretion, and while no modern judge would dismiss the intelligence of a teenage girl as 'intellectual precocity', we can agree with Cockburn CJ as to the principle of the law: the attainment by a child of an age of sufficient discretion to enable him or her to exercise a wise choice in his or her own interests. The modern law governing parental right and a child's capacity to make his own decisions was considered in R v D [1984] 2 All ER 449, [1984] AC 778. The House must, in my view, be understood as having in that case accepted that, save where statute otherwise provides, a minor's capacity to make his or her own decision depends on the minor having sufficient understanding and intelligence to make the decision and is not to be determined by reference to any judicially fixed age limit. The House was faced with a submission that a father, even if he had taken his child away by force or fraud, could not be guilty of a criminal offence of any kind. Lord Brandon, with whom their other Lordships agreed, commented that this might well have been the view of the legislature and the courts in the nineteenth century, but had this to say about parental right and a child's capacity in our time to give or withhold a valid consent ([1984] 2 All ER 449 at 456, [1984] AC 778 at 804--805):
'This is because in those times both the generally accepted conventions of society and the courts by which such conventions were buttressed and enforced, regarded a father as having absolute and paramount authority, as against all the world, over any children of his who were still under the age of majority (then 21), except for a married daughter. The nature of this view of a father's rights appears clearly from various reported cases, including, as a typical example, Re Agar-Ellis, Agar-Ellis v Lascelles (1883) 24 Ch D 317. The common law, however, while generally immutable in its principles, unless different principles are laid down by statute, is not immutable in the way in which it adapts, develops and applies those principles in a radically changing world and against the background of radically changed social conventions and conditions.'
Later he said ([1984] 2 All ER 449 at 457, [1984] AC 778 at 806):
'I see no good reason why, in relation to the kidnapping of a child, it should not in all cases be the absence of the child's consent which is material, whatever its age may be. In the case of a very young child, it would not have the understanding or the intelligence to give its consent, so that absence of consent would be a necessary inference from its age. In the case of an older child, however, it must, I think, be a question of fact for a jury whether the child concerned has sufficient understanding and intelligence to give its consent if, but only if, the jury considers that a child has these qualities, it must then go on to consider whether it has been proved that the child did not give its consent. While the matter will always be for the jury alone to decide, I should not expect a jury to find at all frequently that a child under 14 had sufficient understanding and intelligence to give its consent.'
In the light of the foregoing I would hold
that as a matter of law the parental right to determine
whether or not their minor child below the age of 16 will
have medical treatment terminates if and when the child
achieves a sufficient understanding and intelligence to
enable him or her to understand fully what is proposed. It
will be a question of fact whether a child seeking advice has
sufficient understanding of what is involved to give a
consent valid in law. Until the child achieves the capacity
to consent, the parental right to make the decision continues
save only in exceptional circumstances. Emergency, parental
neglect, abandonment of the child or inability to find the
parent are examples of exceptional situations justifying the
doctor proceeding to treat the child without parental
knowledge and consent but there will arise, no doubt, other
exceptional situations in which it will be reasonable for the
doctor to proceed without the parent's consent. When
applying these conclusions to contraceptive advice and
treatment it has to be borne in mind that there is much that
has to be understood by a girl under the age of 16 if she is
to have legal capacity to consent to such treatment. It is
not enough that she should understand the nature of the
advice which is being given: she must also have a sufficient
maturity to understand what is involved. There are moral and
family questions, especially her relationship with her
parents long-term problems associated with the emotional
impact of pregnancy and its termination and there are the
risks to health of sexual intercourse at her age, risks which
contraception may diminish but cannot eliminate. It follows
that a doctor will have to satisfy himself that she is able
to appraise these factors before he can safely proceed on the
basis that she has at law capacity to consent to
contraceptive treatment. And it further follows that
ordinarily the proper course will be for him, as the guidance
lays down, first to seek to persuade the girl to bring her
parents into consultation, and, if she refuses, not to
prescribe contraceptive treatment unless he is satisfied that
her circumstances are such that he ought to proceed without
parental knowledge and consent.
Like Woolf J, I find illuminating and helpful the judgment
of Addy J of the Ontario High Court in Johnston v
Wellesley Hospital (1970) 17 DLR (3d) 139, a passage from
which he quotes in his judgment in this case ([1984] 1 All ER
365 at 374, [1984] QB 581 at 597). The key passage bears
repetition (17 DLR (3d) 139 at 144--145):
'But, regardless of modern trend, I can find nothing in any of the old reported cases, except where infants of tender age or young children were involved, where the Courts have found that a person under 21 years of age was legally incapable of consenting to medical treatment. If a person under 21 years were unable to consent to medical treatment, he would also be incapable of consenting to other types of bodily interference. A proposition purporting to establish that any bodily interference acquiesced in by a youth of 20 years would nevertheless constitute an assault would be absurd. If such were the case, sexual intercourse with a girl under 21 years would constitute rape. Until the minimum age of consent to sexual acts was fixed at 14 years by a statute, the Courts often held that infants were capable of consenting at a considerably earlier age than 14 years. I feel that the law on this point is well expressed in the volume on Medical Negligence (1957) by Lord Nathan (p 176): ''It is suggested that the most satisfactory solution of the problem is to rule that an infant who is capable of appreciating fully the nature and consequences of a particular operation or of particular treatment can give an effective consent thereto, and in such cases the consent of the guardian is unnecessary but that where the infant is without the capacity, any apparent consent by him or her will be a nullity, the sole right to consent being vested in the guardian.'' '
I am, therefore, satisfied that the department's guidance can be followed without involving the doctor in any infringement of parental right. Unless, therefore, to prescribe contraceptive treatment for a girl under the age of 16 is either a criminal offence or so close to one that to prescribe such treatment is contrary to public policy, the department's appeal must succeed.
The criminal law case
If this case should be made good, the discussion of parental
right is, of course, an irrelevance. If it be criminal or
contrary to public policy to prescribe contraception for a
girl under the age of 16 on the ground that sexual
intercourse with her is unlawful and a crime on the part of
her male partner, the fact that her parent knew and consented
would not make it any less so. I confess that I find the
submission based on criminality or public policy surprising.
So far as criminality is concerned, I am happy to rest on the
judgment of Woolf J, whose approach to the problem I believe
to be correct. Clearly a doctor who gives a girl
contraceptive advice or treatment not because in his clinical
judgment the treatment is medically indicated for the
maintenance or restoration of her health but with the
intention of facilitating her having unlawful sexual
intercourse may well be guilty of a criminal offence. It
would depend, as my noble and learned friend Lord Fraser
observes, on the doctor's intention, a conclusion hardly to
be wondered at in the field of the criminal law. The
department's guidance avoids the trap of declaring that the
decision to prescribe the treatment is wholly a matter of the
doctor's discretion. He may prescribe only if she has the
capacity to consent or if exceptional circumstances exist
which justify him in exercising his clinical judgment without
parental consent. The adjective 'clinical' emphasises that it
must be a medical judgment based on what he honestly believes
to be necessary for the physical, mental and emotional health
of his patient. The bona fide exercise by a doctor of his
clinical judgment must be a complete negation of the guilty
mind which is an essential ingredient of the criminal offence
of aiding and abetting the commission of unlawful sexual
intercourse. The public policy point fails for the same
reason. It cannot be said that there is anything necessarily
contrary to public policy in medical contraceptive treatment
if it be medically indicated as in the interest of the
patient's health for the provision of such treatment is
recognised as legitimate by Parliament: see s 5 of the
National Health Service Act 1977. If it should be prescribed
for a girl under 16 the fact that it may eliminate a health
risk in the event of the girl having unlawful sexual
intercourse is an irrelevance unless the doctor intends to
encourage her to have that intercourse. If the prescription
is the bona fide exercise of his clinical judgment as to what
is best for his patient's health, he has nothing to fear from
the criminal law or from any public policy based on the
criminality of a man having sexual intercourse with
her. It can be said by way of criticism of this view of
the law that it will result in uncertainty and leave the law
in the hands of the doctors. The uncertainty is the price
which has to be paid to keep the law in line with social
experience, which is that many girls are fully able to make
sensible decisions about many matters before they reach the
age of 16. I accept that great responsibilities will lie on
the medical profession. It is, however, a learned and highly
trained profession regulated by statute and governed by a
strict ethical code which is vigorously enforced. Abuse of
the power to prescribe contraceptive treatment for girls
under the age of 16 would render a doctor liable to severe
professional penalty. The truth may well be that the rights
of parents and children in this sensitive area are better
protected by the professional standards of the medical
profession than by a priori legal lines of division between
capacity and lack of capacity to consent since any such
general dividing line is sure to produce in some cases
injustice, hardship and injury to health. For these
reasons I would allow the department's appeal, and set aside
the declaration that the guidance is unlawful. I would add
that, since the second declaration granted by the Court of
Appeal, which concerns only the area health authority, was
based on the same reasoning as the first, it must be held to
have been wrongly granted. The Court of Appeal's decision to
grant it should be, in my opinion, overruled as erroneous in
law.
JUDGMENT BY-3: LORD BRIDGE OF
HARWICH
JUDGMENT-3:
LORD BRIDGE OF HARWICH. My Lords, the prelude to the
proceedings from which this appeal arises was an exchange of
correspondence between the present respondent, Mrs Victoria
Gillick, and her local area health authority in which she
sought, but failed to obtain, an assurance that in no
circumstances would any of her daughters when under 16 be
offered contraceptive advice or treatment. Mrs Gillick now
has her declaration against the health authority, from which
it does not appeal. I should suppose that in such a family as
Mrs Gillick's the possibility of any of her daughters under
16 seeking to use contraceptives secretly was in any event so
remote as to make the issue in the proceedings against the
health authority purely academic. But what prompted the
correspondence was a memorandum of guidance (to which I will
refer simply as 'the memorandum' ) on the subject of
contraceptive advice and treatment for children under 16
issued to all health authorities by the present appellant,
the Department of Health and Social Security (DHSS). The
terms of the memorandum are set out in full in the speeches
of my noble and learned friends Lord Fraser and Lord Scarman.
The memorandum has been declared by the Court of Appeal to be
contrary to law and it is that declaration that gives rise to
the only live issue in this appeal. It is against the ethos
expressed in the memorandum that Mrs Gillick's crusade, as my
noble and learned friend Lord Templeman aptly calls it, is
primarily directed. Throughout the hearing of the
argument in the appeal and in subsequent reflection on the
questions to which it gives rise I have felt doubt and
difficulty as to the basis of the jurisdiction which Mrs
Gillick invokes in her claim to a declaration against the
DHSS. If the claim is well founded, it must surely lie in the
field of public rather than private law. Mrs Gillick has no
private right which she is in a position to assert against
the DHSS. But the point which troubles me has nothing to do
with the purely procedural technicality that the proceedings
were commenced by writ rather than by application for
judicial review. I agree that no objection has been, nor
could now be, raised on that ground. My difficulty is more
fundamental. I ask myself what is the nature of the action or
decision taken by the DHSS in the exercise of a power
conferred on it which entitles a court of law to intervene
and declare that it has stepped beyond the proper limits of
its power. I frame the question in that way because I believe
that hitherto, certainly in general terms, the court's
supervisory jurisdiction over the conduct of administrative
authorities has been confined to ensuring that their actions
or decisions were taken within the scope of the power which
they purported to exercise or conversely to providing a
remedy for an authority's failure to act or to decide in
circumstances where some appropriate statutory action or
decision was called for. Now it is true that the
Secretary of State for Health and Social Security under s
5(1)(b) of the National Health Service Act 1977 has a general
responsibility for the provision within the national health
service of what may be described shortly as family planning
services. But only in a very loose sense could the issue of
the memorandum be considered as part of the discharge of that
responsibility. The memorandum itself has no statutory force
whatever. It is not and does not purport to be issued in the
exercise of any statutory power or in the performance of any
statutory function. It is purely advisory in character and
practitioners in the national health service are, as a matter
of law, in no way bound by it. In the light of these
considerations I cannot, with all respect, agree that the
memorandum is open to review on Wednesbury principles (see
Associated Provincial Picture Houses Ltd v Wednesbury
Corp [1947] 2 All ER 680, [1948] 1 KB 223) on the ground
that it involves an unreasonable exercise of a statutory
discretion. Such a review must always begin by examining the
nature of the statutory power which the administrative
authority whose action is called in question has purported to
exercise, and asking, in the light of that examination, what
were, and what were not, relevant considerations for the
authority to take into account in deciding to exercise that
power. It is only against such a specific statutory
background that the question whether the authority has acted
unreasonably, in the Wednesbury sense, can properly be
asked and answered. Here there is no specific statutory
background by reference to which the appropriate Wednesbury
questions could be formulated. The issue by a
department of government with administrative responsibility
in a particular field of non-statutory guidance to
subordinate authorities operating in the same field is a
familiar feature of modern administration. The innumerable
circulars issued over the years by successive departments
responsible in the field of town and country planning spring
to mind as presenting a familiar example. The question
whether the advice tendered in such non-statutory guidance is
good or bad, reasonable or unreasonable cannot, as a general
rule, be subject to any form of judicial review. But the
question arises whether there is any exception to that
general rule.
Your Lordships have been referred to the House's decision in Royal College of Nursing of the UK v Dept of Health and Social Security [1981] 1 All ER 545, [1981] AC 800. The background to that case was exceptional, as only becomes fully clear when one reads the judgment of Woolf J at first instance (see [1981] 1 All ER 545). The Royal College of Nursing (the RCN) and the DHSS had received conflicting legal advice whether or not it was lawful, on the true construction of certain provisions of the Abortion Act 1967, for nurses to perform particular functions in the course of a novel medical procedure for the termination of pregnancy, when acting on the orders and under the general supervision of a registered medical practitioner but not necessarily in his presence. The RCN had issued a memorandum and a later circular to its members to the effect that it was not lawful. The DHSS had issued a circular advising that it was lawful. The desirability of an authoritative resolution of this dispute on a pure question of law was obvious in the interests both of the nursing profession and of the public. The proceedings took the form of a claim by the RCN against the DHSS for a suitable declaration and the DHSS in due course counterclaimed a declaration to the opposite effect. As Woolf J pointed out, neither side took any point as to the jurisdiction of the court to grant a declaration. Woolf J himself felt it necessary to raise and examine certain questions as to the locus standi of the RCN to bring the proceedings and as to the propriety of their form. He answered these questions in a favourable sense to enable him to decide the disputed question of law on its merits. No technical question bearing on jurisdiction attracted any mention in the Court of Appeal (see [1981] 1 All ER 545, [1981] AC 800) or in this House. In the litigation the original conflict between the parties was reflected in a conflict of judicial opinion. On a count of judicial heads a majority of five to four favoured the RCN. But by a majority of three to two in your Lordships' House the DHSS carried the day and obtained the declaration it sought.
Against this background it would have been
surprising indeed if the courts had declined jurisdiction.
But I think it must be recognised that the decision (whether
or not it was so intended) does effect a significant
extension of the court's power of judicial review. We must
now say that if a government department, in a field of
administration in which it exercises responsibility,
promulgates in a public document, albeit non-statutory in
form, advice which is erroneous in law, then the court, in
proceedings in appropriate form commenced by an applicant or
plaintiff who possesses the necessary locus standi, has
jurisdiction to correct the error of law by an appropriate
declaration. Such an extended jurisdiction is no doubt a
salutary and indeed a necessary one in certain circumstances,
as the Royal College of Nursing case itself well illustrates.
But the occasions of a departmental non-statutory publication
raising, as in that case, a clearly defined issue of law,
unclouded by political, social or moral overtones, will be
rare. In cases where any proposition of law implicit in a
departmental advisory document is interwoven with questions
of social and ethical controversy, the court should, in my
opinion, exercise its jurisdiction with the utmost restraint,
confine itself to deciding whether the proposition of law is
erroneous and avoid either expressing ex cathedra opinions in
areas of social and ethical controversy in which it has no
claim to speak with authority or proffering answers to
hypothetical questions of law which do not strictly arise for
decision.
My Lords, the memorandum, in expressing the view that in
exceptional and unusual cases it may be proper for a doctor
to offer contraceptive advice and treatment to a girl under
16 without the knowledge or consent of her parent, guardian
or other person in loco parentis, implies that the law does
not prohibit the doctor from so acting. The exceptional and
unusual cases contemplated are clearly not confined to cases
of children abandoned by their parents and not yet taken into
care by a local authority or to cases of 'emergency',
whatever meaning one may give to that word in this context. I
am content to assume, without deciding, that Mrs Gillick, in
view of her dispute with the health authority, has sufficient
locus standi to contest the issue of the lawfulness of the
memorandum. To succeed in her action against the DHSS she
must at least establish that, leaving aside cases of
abandoned children or emergencies, the law does absolutely
prohibit the prescription of contraception for a girl under
16 without parental consent or an order of the court.
The most direct support for that proposition is to be found
in the opinion of my noble and learned frield Lord Brandon
that to prescribe contraception for a girl under 16, with or
without parental consent, is either to aid and abet the
offence which will be committed by the man with whom she has
intercourse, or at least so far to facilitate his criminal
conduct as to be contrary to public policy. I appreciate the
logical cogency of my noble and learned friend's reasoning,
but I cannot agree with his conclusion. With reference to the
possible criminal complicity of the doctor I am content
gratefully to adopt the relevant passage from the judgment of
Woolf J (see [1984] 1 All ER 365 at 371--373, [1984] QB 581
at 593--595), with which I fully agree. On the issue of
public policy, it seems to me that the policy consideration
underlying the criminal sanction imposed by statute on men
who have intercourse with girls under 16 is the protection of
young girls from the untoward consequences of intercourse.
Foremost among these must surely be the risk of pregnancy
leading either to abortion or the birth of a child to an
immature and irresponsible mother. In circumstances where it
is apparent that the criminal sanction will not, or is
unlikely to, afford the necessary protection, it cannot, in
my opinion, be contrary to public policy to prescribe
contraception as the only effective means of avoiding a
wholly undesirable pregnancy. On the facts presented to
Butler-Sloss J in Re P (a minor) (1981) LGR 301, I think, if
I may respectfully say so, that she took an eminently
sensible and entirely proper course. The alternative
and more extensively argued ground on which Mrs Gillick
challenges the lawfulness of the memorandum depends on the
two closely related propositions: (a) that no girl under 16
can have the capacity in law to give a valid consent to
submit to contraceptive treatment (b) that the prescription
of such treatment without parental consent is an unlawful
invasion of parental rights. Both these propositions are
comprehensively examined in the speeches of my noble and
learned friends Lord Fraser and Lord Scarman. I fully agree
with the reasons expressed by both my noble and learned
friends for reaching the conclusion that neither proposition
is well founded in law. Accordingly I would allow the
appeal of the DHSS to the extent of setting aside the
declaration made by the Court of Appeal that the memorandum
was contrary to law.
DISSENT BY-1: LORD BRANDON OF
OAKBROOK
DISSENT-JDGMT-1:
LORD BRANDON OF OAKBROOK. My Lords, in this case your
Lordships are concerned with the legal aspect of three
activities relating to the sexual conduct of girls who are
under the age of 16. The first activity is the giving to such
girls by professional persons other than doctors (e g social
workers) of advice about contraception. The second activity
is the physical examination of such girls by doctors with a
view to their using one or other form of contraception. The
third activity is the prescribing for such girls of
contraceptive treatment, especially that form which is
commonly called 'the pill'. The question with regard to these
three activities which has been raised in the two courts
below, and again in your Lordships' House, is whether such
activities can be lawfully carried on without the prior
knowledge and consent of the parents of any girl of the age
concerned. In my opinion the formulation of the
question for decision in this way involves the rolling up in
one composite question of two quite separate and distinct
points of law. The first point of law is whether the three
activities to which I have referred can be carried on
lawfully in any circumstances whatever. If, on the one hand,
the right answer to the first point of law is No, then no
second point of law arises for decision. If, on the other
hand, the answer to the first question is Yes, then a second
point of law arises, namely whether the three activities
referred to can only be lawfully carried on with the prior
knowledge and consent of the parents of the girl concerned.
The first point of law appears to me to be one of public
policy, the answer to which is to be gathered from an
examination of the statutory provisions which Parliament has
enacted from time to time in relation to men having sexual
intercourse with girls either under the age of 13 or between
the ages of 13 and 16. It is, I think, sufficient to begin
with the Criminal Law Amendment Act 1885 and then to go on to
the Sexual Offences Act 1956, by which the former Act was
repealed and largely replaced. Part I of the 1885 Act,
which contained ss 2 to 12, had the cross-heading 'Protection
of Women and Girls'. Sections 4 and 5 provided, so far as
material:
'4. Any person who unlawfully and carnally knows any girl under the age of thirteen years shall be guilty of felony, and being convicted thereof shall be liable at the discretion of the court to be kept in penal servitude for life, or for any term not less than five years, or to be imprisoned for any term not exceeding two years, with or without hard labour . . .
5. Any person who--(1.) Unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen years and under the age of sixteen years . . . shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour . . .'
In R v Tyrrell [1894] 1 QB 710, [1891--4] All ER Rep 1215 it was held by the Court for Crown Cases Reserved that it was not a criminal offence for a girl between the ages of 13 and 16 to aid and abet a man in committing, or to incite him to commit, the misdemeanour of having carnal knowledge of her contrary to s 5 of the Criminal Law Amendment Act 1885 set out above. The ground of this decision was that the 1885 Act had been passed for the purpose of protecting women and girls against themselves: see the judgment of Lord Coleridge CJ ([1894] 1 QB 710 at 712, [1891--4] All ER Rep 1215 at 1215--1216): The Sexual Offences Act 1956 represents the latest pronouncement of Parliament on these matters. Sections 5 and 6 provide, so far as material:
'5. It is a felony for a man to have unlawful sexual intercourse with a girl under the age of thirteen.
6.--(1) It is an offence . . . for a man to have unlawful sexual intercourse with a girl under the age of sixteen . . .'
Further, by s 37 and Sch 2, the maximum punishment for an offence under s 5 is imprisonment for life, and that for an offence under s 6 imprisonment for two years. Since the passing of the 1956 Act the distinction between felonies and misdemeanours has been abolished. For the purposes of this case, however, nothing turns on this change of terminology.
My Lords, the inescapable inference from the statutory provisions of the 1885 and 1956 Acts to which I have referred is that Parliament has for the past century regarded, and still regards today, sexual intercourse between a man and a girl under 16 as a serious criminal offence so far as the man who has such intercourse is concerned. So far as the girl is concerned, she does not commit any criminal offence, even if she aids, abets or incites the having of such intercourse. The reason for this, as explained earlier, is that the relevant statutory provisions have been enacted by Parliament for the purpose of protecting the girl from herself. The having of such intercourse is, however, unlawful, and the circumstance that the man is guilty of a criminal offence, while the girl is not, cannot alter that situation. On the footing that the having of sexual intercourse by a man with a girl under 16 is an unlawful act, it follows necessarily that for any person to promote, encourage or facilitate the commission of such an act may itself be a criminal offence, and must, in any event, be contrary to public policy. Nor can it make any difference that the person who promotes, encourages or facilitates the commission of such an act is a parent or a doctor or a social worker. The question then arises whether the three activities to which I referred earlier should properly be regarded as, directly or indirectly, promoting, encouraging or facilitating the having, contrary to public policy, of sexual intercourse between a man and a girl under 16. In my opinion there can be only one answer to this question, namely that to give such a girl advice about contraception, to examine her with a view to her using one or more forms of protection and finally to prescribe contraceptive treatment for her, necessarily involves promoting, encouraging or facilitating the having of sexual intercourse, contrary to public policy, by that girl with a man. The inhibitions against the having of sexual intercourse between a man and a girl under 16 are primarily twofold. So far as the man is concerned there is the inhibition of the criminal law as contained in ss 5 and 6 of the 1956 Act. So far as both are concerned there is the inhibition arising from the risk of an unwanted pregnancy. To give the girl contraceptive treatment, following appropriate advice and examination, is to remove largely the second of these two inhibitions. Such removal must involve promoting, encouraging or facilitating the having of sexual intercourse between the girl and the man.
It has been argued that some girls under 16 will have sexual intercourse with a man whether contraceptive treatment is made available to them or not, and that the provision of such treatment does not, therefore, promote, encourage or facilitate the having of such intercourse. In my opinion this argument should be rejected for two quite separate reasons. The first reason is that the mere fact that a girl under 16 seeks contraceptive advice and treatment, whether of her own accord or at the suggestion of others, itself indicates that she, and probably also the man with whom she is having, or contemplating having, sexual intercourse, are conscious of the inhibition arising from the risk of an unwanted pregnancy. They are conscious of it and are more likely to indulge their desires if it can be removed. The second reason is that, if all a girl under 16 needs to do in order to obtain contraceptive treatment is to threaten that she will go ahead with, or continue, unlawful sexual intercourse with a man unless she is given such treatment, a situation tantamount to blackmail will arise which no legal system ought to tolerate. The only answer which the law should give to such a threat is, 'Wait till you are 16.' The DHSS has contended that s 5(1) of the National Health Service Act 1977 imposes on it a statutory duty to carry out, in relation to girls under 16 as well as to older girls or women, the three activities to which I referred earlier. That provision reads:
'It is the Secretary of State's duty . . . (b) to arrange, to such extent as he considers necessary to meet all reasonable requirements in England and Wales, for the giving of advice on contraception, the medical examination of persons seeking advice on contraception, the treatment of such persons and the supply of contraceptive substances and appliances.'
This provision does not define the 'persons' who are the subject matter of it, nor is there any definition of that expresssion anywhere else in the Act. In these circumstances it seems to me that a court, in interpreting the provision, must do so in a way which conforms with considerations of public policy rather than in a way which conflicts with them. For the reasons which I have given earlier, I am of the opinion that, in the case of girls under 16, the giving of advice about contraception medical examination with a view to the use of one or other form of contraception, and the prescribing of contraceptive treatment are all contrary to public policy. It follows that I would interpret the expression 'persons' in s 5(1)(b) above as not including girls under 16. Alternatively, I would say that the expression 'all reasonable requirements', which occurs earlier in the provision, cannot be interpreted as including the requirements of a girl under 16 which, if satisfied, will promote, encourage or facilitate unlawful acts of sexual intercourse between a man and her.
My Lords, reference was made in the course of the argument before you to a decision of Butler-Sloss J in Re P (a minor) (1981) LGR 301. In that case the judge, in wardship proceedings, ordered that a girl of 15, who had been pregnant for the second time and was in the care of a local authority, should be fitted with a contraceptive appliance because it appeared that it was impossible for the local authority, in whose care she was, to control her sexual conduct. It was contended that this decision was authority for the proposition that, in wardship proceedings at any rate, an order could lawfully be made for the supply and fitting of a contraceptive appliance to a girl under 16.
I do not know what arguments were or were not addressed to Butler-Sloss J in that case, and it is, in any event, unnecessary for your Lordships to decide in these proceedings the limits of the powers of a court exercising wardship jurisdiction. As at present advised, however, I am of opinion, with great respect to Butler-Sloss J, that the order which she made was not one which she could lawfully make. My Lords, great play was made in the argument before you of the disastrous consequences for a girl under 16 of becoming pregnant as a result of her willingly having unlawful sexual intercourse with a man. I am fully conscious of these considerations, but I do not consider that, if the views which I have so far expressed are right in law, those considerations can alter the position. It is sometimes said that the age of consent for girls is presently 16. This is, however, an inaccurate way of putting the matter, since, if a man has sexual intercourse with a girl under 16 without her consent, the crime which he thereby commits is that of rape. The right way to put the matter is that 16 is the age of a girl below which a man cannot lawfully have sexual intercourse with her. It was open to Parliament in 1956, when the Sexual Offences Act of that year was passed, and it has remained open to Parliament throughout the 29 years which have since elapsed, to pass legislation providing for some lower age than 16, if it thought fit to do so. Parliament has not thought fit to do so, and I do not consider that it would be right for your Lordships' House, by holding that girls under 16 can lawfully be provided with contraceptive facilities, to undermine or circumvent the criminal law which Parliament has enacted. The criminal law and the civil law should, as it seems to me, march hand in hand on all issues, including that raised in this case, and to allow inconsistency or contradiction between them would, in my view, serve only to discredit the rule of law as a whole. Since I am of opinion that the first question which I posed earlier, namely whether the provision of contraceptive facilities to girls under 16 was lawful in any circumstances at all, should be answered in the negative, the second question which I posed, relating to the need for prior parental knowledge and consent, does not arise. This is because, on the view which I take of the law, making contraception available to girls under 16 is unlawful, whether their parents know of and consent to it or not.
My Lords, it remains for me to indicate what order I consider that the House should make on this appeal. With regard to the first declaration made by the Court of Appeal, I would uphold it, albeit on grounds wider than those on which it was founded in that court. With regard to the second declaration, there is no appeal against it and I would uphold it also, although, for the reasons which I have given, I regard the four lines which follow the words 'the age of 16' (namely 'without the prior knowledge and/or consent of the said child's parent or guardian save in cases of emergency or with the leave of the Court') as surplusage.
In the result, I would dismiss the appeal of the DHSS with costs.
DISSENT BY-2: LORD TEMPLEMAN
DISSENT-JDGMT-2:
LORD TEMPLEMAN. My Lords, this appeal involves
consideration of the independence of a teenager, the powers
of a parent and the duties of a doctor. The question is: who
has the right to decide whether an unmarried girl under the
age of 16 may practice contraception? An unmarried girl under
the age of 16 does not, in my opinion, possess the power in
law to decide for herself to practise contraception. Section
6 of the Sexual Offences Act 1956 makes it an offence for a
man to have unlawful sexual intercourse with a girl under the
age of 16. Consent by the girl does not afford a defence to
the man or constitute an offence by the girl. Parliament has
thus indicated that an unmarried girl under the age of 16 is
not sufficiently mature to be allowed to decide for herself
that she will take part in sexual intercourse. Such a girl
cannot therefore be regarded as sufficiently mature to be
allowed to decide for herself that she will practise
contraception for the purpose of frequent or regular or
casual sexual intercourse. Section 6 of the Sexual Offences
Act 1956 does not, however, in my view, prevent parent and
doctor from deciding that contraceptive facilities shall be
made available to an unmarried girl under the age of 16 whose
sexual activities are recognised to be uncontrolled and
uncontrollable. Section 6 is designed to protect the girl
from sexual intercourse. But if the girl cannot be deterred
then contraceptive facilities may be provided, not for the
purpose of aiding and abetting an offence under s 6 but for
the purpose of avoiding the consequences, principally
pregnancy, which the girl may suffer from illegal sexual
intercourse where sexual intercourse cannot be prevented. In
general, where parent and doctor agree that any form of
treatment, including contraceptive treatment, is in the best
interests of the girl, there is, in my opinion, no legal bar
to that treatment. Difficulties arise when parent and
doctor differ. The parent, claiming the right to decide what
is in the best interests of a girl in the custody of that
parent, may forbid the provision of contraceptive facilities.
A doctor, claiming the right to decide what is in the best
interests of a patient, may wish to override the parent's
objections. A conflict which is express may be resolved by
the court, which may accept the view of either parent or
doctor or modify the views of both of them as to what is in
the best interests of the girl. The present appeal is
concerned with a conflict which is known to the doctor but is
concealed from the parent and from the court. The girl, aware
that the parent will forbid contraception, requests the
doctor to provide and the doctor agrees to provide
contraceptive facilities and to keep the parent in ignorance.
A parent is the natural and legal guardian of an infant under
the age of 18 and is responsible for the upbringing of an
infant who is in the custody of that parent. The practical
exercise of parental powers varies from control and
supervision to guidance and advice depending on the
discipline enforced by the parent and the age and temperament
of the infant. Parental power must be exercised in the best
interests of the infant and the court may intervene in the
interests of the infant at the behest of the parent or at the
behest of a third party. The court may enforce parental
right, control the misuse of parental power or uphold
independent views asserted by the infant. The court will be
guided by the principle that the welfare of the infant is
paramount. But, subject to the discretion of the court to
differ from the views of the parent, the court will, in my
opinion, uphold the right of the parent having custody of the
infant to decide on behalf of the infant all matters which
the infant is not competent to decide. The prudent parent
will pay attention to the wishes of the infant and will
normally accept them as the infant approaches adulthood. The
parent is not bound by the infant's wishes, but an infant
approaching adulthood may be able to flout the wishes of the
parent with ease. A doctor tenders advice and offers
treatment which the doctor considers to be in the best
interests of the patient. A patient is free to reject the
advice and refuse the treatment: see Sidaway v Bethlem
Royal Hospital Governors [1985] 1 All ER 643 at 665,
[1985] 2 WLR 480 at 508. Where the patient is an infant, the
medical profession accept that a parent having custody and
being responsible for the infant is entitled on behalf of the
infant to consent to or reject treatment if the parent
considers that the best interests of the infant so require.
Where doctor and parent disagree, the court can decide and is
not slow to act. I accept that if there is no time to obtain
a decision from the court, a doctor may safely carry out
treatment in an emergency if the doctor believes the
treatment to be vital to the survival or health of an infant
and notwithstanding the opposition of a parent or the
impossibility of alerting the parent before the treatment is
carried out. In such a case the doctor must have the courage
of his convictions that the treatment is necessary and urgent
in the interests of the patient and the court will, if
necessary, approve after the event treatment which the court
would have authorised in advance, even if the treatment
proves to be unsuccessful. I accept also that a doctor
may lawfully carry out some forms of treatment with the
consent of an infant patient and against the opposition of a
parent based on religious or any other grounds. The effect of
the consent of the infant depends on the nature of the
treatment and the age and understanding of the infant. For
example, a doctor with the consent of an intelligent boy or
girl of 15 could in my opinion safely remove tonsils or a
troublesome appendix. But any decision on the part of a girl
to practise sex and contraception requires not only knowledge
of the facts of life and of the dangers of pregnancy and
disease but also an understanding of the emotional and other
consequences to her family, her male partner and to herself.
I doubt whether a girl under the age of 16 is capable of a
balanced judgment to embark on frequent, regular or casual
sexual intercourse fortified by the illusion that medical
science can protect her in mind and body and ignoring the
danger of leaping from childhood to adulthood without the
difficult formative transitional experiences of adolescence.
There are many things which a girl under 16 needs to practise
but sex is not one of them. Parliament could declare this
view to be out of date. But in my opinion the statutory
provisions discussed in the speech of noble and learned
friend Lord Fraser and the provisions of s 6 of the Sexual
Offences Act 1956 indicate that as the law now stands an
unmarried girl under 16 is not competent to decided to
practise sex and contraception. In the present case it is
submitted that a doctor may lawfully make a decision on
behalf of the girl and in so doing may overrule or ignore the
parent who has custody of the girl. It is submitted that a
doctor may at the request of a girl under 16 provide
contraceptive facilities against the known or assumed wishes
of the parent and on terms that the parent shall be kept in
ignorance of the treatment. The justification is advanced
that, if the girl's request is not met, the girl may persist
in sexual intercourse and run the risk of pregnancy. It is
not in the interests of a girl under 16 to become pregnant
and therefore the doctor may, in her interests,
confidentially provide contraceptive facilities unless the
doctor can persuade the girl to abstain from sexual
intercourse or can persuade her to ensure that precautions
are taken by the male participant. The doctor is not bound to
provide contraceptive facilities but, it is said, is entitled
to do so in the best interests of the girl. The girl must be
assured that the doctor will be pledged to secrecy otherwise
the girl may not seek advice or treatment but will run all
the risks of disease and pregnancy involved in sexual
activities without adequate knowledge or mature consideration
and preparation. The Department of Health and Social Security
(DHSS) memorandum instructs a doctor to seek to persuade the
girl to involve the parent but concludes that 'the decision
whether or not to prescribe contraception must be for the
clinical judgment of a doctor'. There are several
objections to this approach. The first objection is that a
doctor, acting without the views of the parent, cannot form a
'clinical' or any other reliable judgment that the best
interests of the girl require the provision of contraceptive
facilities. The doctor at the family planning clinic only
knows that which the girl chooses to tell him. The family
doctor may know some of the circumstances of some of the
families who form his registered patients but his information
may be incomplete or misleading. The doctor who provides
contraceptive facilities without the knowledge of the parent
deprives the parent of the opportunity to protect the girl
from sexual intercourse by persuading and helping her to
avoid sexual intercourse or by the exercise of parental power
which may prevent sexual intercourse. The parent might be
able to bring pressure on a male participant to desist from
the commission of the offence of sexual intercourse with a
girl under 16. The parent might be able and willing to
exercise parental power by removing the family or the girl to
a different neighbourhood and environment and away from the
danger of sexual intercourse. The second objection is
that a parent will sooner or later find out the truth,
probably sooner, and may do so in circumstances which bring
about a complete rupture of good relations between members of
the family and between the family and the doctor. It is
inevitable that, when the parent discovers that the girl is
practising sexual intercourse, the girl will in
self-justification and in an attempt to reassure the parent
reveal that she is relying on contraceptive facilities
provided by the doctor in order to avoid pregnancy. The girl
and the doctor will be the loser by this revelation.
The third and main objection advanced on behalf of the
respondent parent, Mrs Gillick, in this appeal is that the
secret provision of contraceptive facilities for a girl under
16 will, it is said, encourage participation by the girl in
sexual intercourse and this practice offends basic principles
of morality and religion which ought not to be sabotaged in
stealth by kind permission of the national health service.
The interests of a girl under 16 require her to be protected
against sexual intercourse. Such a girl is not sufficiently
mature to be allowed to decide to flout the accepted rules of
society. The pornographic press and the lascivious film may
falsely pretend that sexual intercourse is a form of
entertainment available to females on request and to males on
demand but the regular, frequent or casual practice of sexual
intercourse by a girl or a boy under the age of 16 cannot be
beneficial to anybody and may cause harm to character and
personality. Before a girl under 16 is supplied with
contraceptive facilities, the parent who knows most about the
girl and ought to have the most influence with the girl is
entitled to exercise parental rights of control, supervision,
guidance and advice in order that the girl may, if possible,
avoid sexual intercourse until she is older. Contraception
should only be considered if and when the combined efforts of
parent and doctor fail to prevent the girl from participating
in sexual intercourse and there remains only the possibility
of protecting the girl against pregnancy resulting from
sexual intercourse. These arguments have provoked great
controversy which is not legal in character. Some doctors
approve and some doctors disapprove of the idea that a doctor
may decide to provide contraception for a girl under 16
without the knowledge of the parent. Some parents agree and
some parents disagree with the proposition that the decision
must depend on the judgment of the doctor. Those who favour
doctor power assert that the failure to provide confidential
contraceptive treatment will lead to an increase in
pregnancies amongst girls under 16. As a general proposition,
this assertion is not supported by evidence in this case, is
not susceptible to proof and in my opinion is of doubtful
validity. Availability of confidential contraceptive
treatment may increase the demand for such treatment.
Contraceptive treatment for females usually requires daily
discipline in order to be effective and girls under 16
frequently lack that discipline. The total number of
pregnancies amongst girls of under 16 may, therefore, be
increased and not decreased by the availability of
contraceptive treatment. But there is no doubt that an
individual girl who is denied the opportunity of confidential
contraceptive treatment may invite or succumb to sexual
intercourse and thereby become pregnant. Those who favour
parental power assert that the availability of confidential
contraceptive treatment will increase sexual activity by
girls under 16. This argument is also not supported by
evidence in the present case and is not susceptible to proof.
But it is clear that contraception removes or gives an
illusion of removing the possibility of pregnancy and
therefore removes restraint on sexual intercourse. Some girls
would come under pressure if contraceptive facilities were
known to be available and some girls under 16 are susceptible
to male domination. Parliament could decide whether it is
better to have more contraception with the possibility of
fewer pregnancies and less disease or whether it is better to
have less contraception with the possibility of reduced
sexual activity by girls under 16. Parliament could ensure
that the doctor prevailed over the parent by reducing the age
of consent or by expressly authorising a doctor to provide
contraceptive facilities for any girl without informing the
parent, provided the doctor considered that his actions were
for the benefit of the girl. Parliament could, on the other
hand, ensure that the parent prevailed over the doctor by
forbidding contraceptive treatment for a girl under 16 save
by or on the recommendation of the girl's general medical
practitioner and with the consent of the parent who has
registered the girl as a patient of that general
practitioner. Some girls, it is said, might pretend to be
over 16 but a doctor in doubt could always require
confirmation from the girl's registered medical practitioner.
This appeal falls to be determined by the existing
law. No authority has been cited which prevents an infant
from seeking medical or any other advice or which forbids a
doctor to advise an infant who has not been tendered by the
parent as a patient. No authority compels a doctor to
disclose to a parent, otherwise than in the course of
litigation, any information obtained as a result of a
conversation between the doctor and the infant. On the other
hand, in my opinion, confidentiality owed to an infant is not
breached by disclosure to a parent responsible for that
infant if the doctor considers that such disclosure is
necessary in the interests of the infant. A doctor who gave a
pledge to a girl under 16 that he would not disclose the fact
or content of a conversation would no doubt honour that
pledge, but the doctor ought to hesitate before committing
himself. A doctor who gave an unconditional pledge of
confidentiality to a girl under 16 would, for example, be in
a difficult position if the girl then disclosed information
which made the doctor suspect that she was being introduced
to sexual intercourse by a man who was also introducing her
to drugs. Although a doctor is entitled to give
confidential advice to an infant, the law will, in my
opinion, uphold the right of a parent to make a decision
which the infant is not competent to make. The decision to
authorise and accept medical examination and treatment for
contraception is a decision which a girl under 16 is not
competent to make. In my opinion a doctor may not lawfully
provide a girl under 16 with contraceptive facilities without
the approval of the parent responsible for the girl save
pursuant to a court order, or in the case of emergency or in
exceptional cases where the parent has abandoned or forfeited
by abuse the right to be consulted. Parental rights cannot be
insisted on by a parent who is not responsible for the
custody and upbringing of an infant or where the parent has
abandoned or abused parental rights. And a doctor is not
obliged to give effect to parental rights in an emergency. A
girl under 16 is usually living with a parent and is usually
attending school. It is sufficient for the doctor to obtain
the consent of the parent or guardian with whom the girl is
living. It seems to me to be contrary to law and offensive to
professional standards that a doctor should provide
contraceptive facilities against the known or presumed wishes
of such a parent and that the doctor should conspire with the
girl to keep the parent in ignorance of the fact that the
girl intends to participate in frequent, regular or casual
sexual intercourse in the belief that the only bar to sexual
intercourse is the risk of pregnancy and in complacent
reliance on the doctor's contraceptive facilities to obviate
that risk. But parental rights may have been abandoned.
If the doctor discovers, for example, that the girl is not
living with a parent but has been allowed to live in an
environment in which the danger of sexual intercourse is
pressing, the doctor may lawfully provide facilities for
contraception until the parent has been alerted to the danger
and has been afforded the opportunity to reassert parental
rights and to protect the girl by means other than
contraception. The court will uphold the doctor's actions if
the doctor reasonably believes that parental rights have, for
the time being at any rate, been abandoned. Parental rights
may have been abused. The dangers of sexual intercourse may
emanate from the girl's home. The doctor would be entitled to
provide the girl with contraceptive facilities but would then
be bound to consider whether the local welfare authorities
should be alerted to the possibility that the girl is in need
of care and protection. Again, the doctor may be satisfied
that the parent is a brute and that the girl has been driven
to seek solace outside the family. The doctor might decide
that it was necessary to provide contraceptive facilities for
the girl without informing the parent but the doctor would be
bound to consider the possible consequences if the parent,
known to be brutal, discovered the truth.
The doctor may also be faced with circumstances which could properly be described as a medical emergency. The doctor may decide that the girl is unable to control her sexual appetite or is acting under an influence which cannot be counteracted immediately. The doctor would be entitled to provide contraceptive facilities as a temporary measure but would, in my opinion, be bound to inform the parent. A subsequent decision to continue contraceptive treatment would be open to the doctor and the parent acting jointly in default of agreement between them, the welfare authority or the court could be asked to intervene. There may be other exceptional circumstances and emergencies which would impel the doctor to provide contraceptive facilities without the prior consent of the parent but in most cases the doctor would be bound to inform the parent as soon as possible in order that the parent might have the opportunity of exercising parental rights in such manner as to deter or prevent the girl from indulging in sexual intercourse. The position seems to me to be as follows. A doctor is not entitled to decide whether a girl under the age of 16 shall be provided with contraceptive facilities if a parent who is in charge of the girl is ready and willing to make that decision in exercise of parental rights. The doctor is entitled in exceptional circumstances and in emergencies to make provision, normally temporary provision, for contraception but in most cases would be bound to inform the parent of the treatment. The court would not hold the doctor liable for providing contraceptive facilities if the doctor had reasonable grounds for believing that the parent had abandoned or abused parental rights or that there was no parent immediately available for consultation or that there was no parent who was responsible for the girl. But exceptional circumstances and emergencies cannot be expanded into a general discretion for the doctor to provide contraceptive facilities without the knowledge of the parent because of the possibility that a girl to whom contraceptive facilities are not available may irresponsibly court the risk of pregnancy. Such a discretion would enable any girl to obtain contraception on request by threatening to sleep with a man. In the present state of the law the DHSS memorandum appears to me to be defective. The principal defect lies in the assertion that 'the decision whether or not to prescribe contraception must be for the clinical judgment of a doctor'. In my opinion a decision by a doctor to provide contraceptive facilities for an unmarried girl of 16 against the known or presumed wishes of a parent who has custody of the girl and without the knowledge of the parent would constitute an unlawful interference with the rights of the parent, subject to the intervention of the court, to make that decision on behalf of the girl and an unlawful interference with the right of the parent to influence the conduct of the girl by the exercise of parental powers of control, guidance and advice. There are two further defects. The memorandum asserts 'that consultations between doctors and patients are confidential' without making any distinction between adult patients and infant patients. The memorandum also suggests that doctors should consider providing contraceptive facilities without the knowledge of the parent where 'parents are, for example, unconcerned, entirely unresponsive or grossly disturbed'. Of course a doctor must protect a girl against a parent who is grossly disturbed although the doctor must also consider the possible consequences if such a parent discovers that the daughter has been practising sexual intercourse with the ostensible approval of the doctor manifested by the secret supply of contraceptives. And if it is plain that the parent is 'unconcerned' in the sense that parental control has been abandoned, then the provision of contraceptive facilities without the prior knowledge of the parent would be lawful. But any girl who is anxious to practise sexual intercourse may plausibly represent that the parent is 'entirely unresponsive'. On behalf of Mrs Gillick it was urged with some force that the practical effect of the memorandum couched in this opaque language was to enable an inexperienced doctor in a family planning clinic, exuding sympathy and veiled in ignorance of the girl's personality and history, to provide contraceptives as if they were sweets withheld from a deprived child by an unfeeling parent and that any parent who was concerned with the girl's immortal soul or with moral or religious principles might be said to be 'entirely unresponsive' to a proposal that an unmarried girl under the age of 16 should be provided with contraceptives. As the memorandum now stands, a 'clinical judgment' by the doctor may amount to no more than a belief that a parent will not consent to contraception and a fear that the girl may practise sex without contraception.
These defects in the memorandum constitute in my opinion a mistake of law on the part of the DHSS. The memorandum assumes and asserts that the doctor is entitled by himself to decide whether an unmarried girl under the age of 16 shall be provided with contraceptive facilities and that the doctor is entitled to conceal that decision from the parent. In my opinion the decision cannot lawfully be made without the consent of the parent in charge of the girl unless the parent has abandoned or abused parental powers or is not available. If the memorandum is defective by reason of a mistake of law and if, in consequence, a doctor making a decision in reliance on the views expressed in the memorandum may unlawfully interfere with the rights of a parent and make and act on a decision which the doctor is in law not entitled to make, then in my opinion the DHSS, which is responsible for the memorandum, is amenable to the remedies of judicial review. It matters not whether the memorandum constitutes an order or guidance or advice or a mere expression of views directed to the medical profession or directed to doctors who are engaged in the national health service. This issue is not whether the DHSS is exercising a statutory decretion in a reasonable way but whether by mistake of law the DHSS, a public authority, purports by the memorandum to authorise or approve an unlawful interference with parental rights. In this respect I gratefully acknowledge and accept the observations of my noble and learned friend Lord Bridge and his warning against the involvement of the courts in areas of social and ethical controversy or hypothetical questions. Nevertheless the questions raised by this appeal must now be answered and, differing from a majority of your Lordships, I consider that Mrs Gillick has succeeded in her crusade and is entitled in judicial review proceedings to a declaration that the memorandum is unlawful in so far as it purports to authorise or approve of the provision of contraceptive facilities for an unmarried girl under the age of 16 without the knowledge of a parent who holds custody of the girl and has not abandoned or abused the parental right to decide whether such facilities shall be provided. The danger that other parents or individuals may exploit judicial review proceedings by referring social problems to the courts or by seeking general pronouncements of law based on hypothetical facts can be averted by the exercise of the judicial discretion to refuse leave to prosecute judicial review proceedings. In the present case the proceedings are not in form judicial review proceedings but at this stage the technicality can be ignored because the legal issues raised in these proceedings cannot be allowed to remain unanswered. I would therefore grant the relief I have indicated in substitution for the declarations made by the Court of Appeal and I would order Mrs Gillick's costs to be paid by the DHSS. My Lords, in this appeal social issues are entangled with legal issues. In my view the law is consistent with social policy in forbidding the provision of contraceptive facilities for young girls who are under the care and protection of a parent without the involvement of the parent. But social issues need not finally be determined and are not best determined by lawyers or by doctors.
DISPOSITION:
Appeal allowed.
SOLICITORS:
Treasury Solicitor; Berrymans, agents for Ollard &
Bentley, March (for Mrs Gillick).
http://www.cirp.org/library/legal/UKlaw/gillickvwestnorfolk1985/