Not Saussure

March 16, 2007

Gillick competence

Filed under: Abortion, civil liberties, Law, Politics — notsaussure @ 8:31 pm

Some belated thoughts on the unsurprising, but nonetheless welcome, news that a Private Member’s bill, introduced by Angela Watkinson MP in a attempt

to force doctors offering abortion or contraception advice to under-16s to inform the child’s parents has been rejected by MPs.

First, it seems a dreadful bid to gain plaudits from certain newspapers by having MPs micro-manage professions because the man and woman from Westminster know best. As I understand it, the present situation (pdf) is that medical professionals are supposed to encourage under-age girls to discuss such matters with their parents — not, I would think, that medical professionals need much encouraging so to do; they are, after all, themselves reasonably responsible adults, many of whom have themselves (or hope to have, or have had) teenage children, some of whom may be girls — but, if the girl refuses to tell her parents, then they must respect her confidence.

Certainly, had I daughters, I’d rather they didn’t start having sex with boys until they were somewhat older than 16, and I’d certainly hope that they’d feel able to discuss such matters — particularly if they found themselves pregnant — with their mother and me, but, if they didn’t feel able so to do, I most certainly wouldn’t want anything to deter them from seeking medical advice on pregnancy, contraception and sexually transmitted diseases.

Second, the arguments adduced in support of Mrs Watkinson by Professor David Paton of Nottingham University Business School (who brings the insights of Industrial Economics to bear on this question) to the effect that

“There are different areas of the United States where parents have to be involved in abortion and pretty much all of these studies have shown abortion rates have dropped as we’d expect… and overall we see a drop in teenage pregnancies”

seem to me completely to miss the point. It is, after all, frequently risky to generalise from the experience of other people’s countries; the fact that something appears to work in Scandinavia is not necessarily a guarantee it would be desirable here (see Polly Toynbee, passim). And there are certain areas where it’s downright wrong-headed — any study of drivers’ behaviour that was conducted in, for example, Russia or Italy would almost certainly not provide a good guide to how drivers behave anywhere else.

So it is with Americans and certain topics; I’ve long held the view that the only sensible conclusion to be drawn from any statistics collected in America is that Americans and guns are clearly a very dangerous mixture and that we should, rather, look at the example of places like France and Swizerland, where they seem to be able to cope with rifles, at least, without shooting each other too often. Ditto the death penalty; Americans, despite being armed to the teeth for their own protection, apparently need the most draconian measures to protect themselves and still far more likely to be murdered than are most of us Europeans. Fair enough; they know their country and their fellow-countrymen best, and they need laws to suit their local conditions. But their local conditions and mores are not necessarily ours.

And abortion is so clearly one of those topics that Americans have their own unique take on. It’s a defining political issue over there; it’s hugely important whether a candidate’s ‘pro-choice’ or ‘pro-life’ in a way seems, when we think about it, utterly eccentric to us Brits. Also, of course, access to abortion — at least, if you have to depend on publicly funded services, which most American teenagers would, one imagines, need to — is so limited there compared with the situation here. It just doesn’t seem a sensible comparison.

Third, and to my mind, very important, is that there’s an angle to this Parliament missed completely. The question of whether, and under what circumstances, children can consent to medical treatment — specifically contraception — without their parents’ consent, or even knowledge, was litigated by Mrs Victoria Gillick back in 1983, when Mrs Gillick sought — unsuccessfully — a declaration that none of her five daughters, then aged 1 to 13 — could be prescribed or advised on birth control until they were 16. The case eventually went to the Lords, where Lord Scarman defined a test that’s now generally known as Gillick competency. It’s subsequently been refined, and somewhat watered down when it comes to children refusing treatment, or parents refusing treatment on their children’s behalf, but, in general, the test of Gillick competency is, in Lord Scarman’s words (pp 26-27)

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.

It’s this, obviously, that Mrs Watkinson sought to overturn, at least with reference to abortion and contraception.

Now, the idea of ‘Gillick competency’ has spread to other areas, particularly — and in a dangerously garbled form — to children’s capacity to consent to having sensitive data about themselves (and, in some circumstances, sensitive and unverified data about about matters such as what they take to be their parents’, siblings’ and friends’ drinking and drug-taking habits) stored and shared without their parents’ consent, or even knowledge.

The recent report, Children’s Databases — Safety and Privacy, expresses concern over the

rather cavalier interpretation of data protection law and privacy law by a number of the agencies involved in building the network of children’s databases. For example, the Gillick precedent (confirmed recently in the Axon case) establishes that a child’s parents should normally be involved in matters of consent, but that, exceptionally, the child may exercise the consent function to the exclusion of the parent if he or she insists on it and has the maturity to understand the consequences. This has been routinely turned into a principle that anyone over 13 can consent to sharing sensitive personal information without the involvement of their parents. In some circumstances the consent is obtained coercively, with implied threats of loss of access to services. This is unlawful. (p 2)

For a detailed discussion of the way in which the notion of consent in Gillick and Axon — that, in Lord Fraser’s words in the Gillick case, a doctor is

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 [or anyone else] 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.

— has been perverted by various government and departmental guidelines concerning databases and children’s consent, see Chapter 7 of the report (especially pp 90 and following).

In short, Mrs Watkinson’s bill sought to overturn Gillick, which established what, to my mind, is a pretty reasonable state of affairs when it comes to medical treatment — the medical professional should try to persuade the girl to discuss the matter with her parents but, if she flatly refuses so to do, and if the doctor thinks it’s in her best interests to go ahead with treatment without their consent, then so be it — while ignoring the abuses committed in its name, whereby

This has been routinely turned into a principle that anyone over 13 can consent to sharing sensitive personal information without the involvement of their parents.

In other words, Mrs Watkinson was, to my mind, aiming at the wrong target and missing an opportunity to go after a far more wide-spread (and potentially extremely sinister) abuse.

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  1. The stretching of the ‘Gillick competency’ framework is quite extraordinary. Not only is it highly questionable whether it can even cover complex acts of data-sharing; the information-sharing agenda has moved it from the position of “if the child will not involve parents, then assess competency” to “if the child isn’t competent, then involve parents”. We were rather shocked by some of the consent policies that we saw when preparing the report you mention, because it was impossible to find the legal basis for them.

    This tortured model of Gillick has been in use for several years now, along with a deeply ambivalent attitude towards parents. I have a copy of the early guidance to Connexions practitioners (the service for 13-19s)from 2002 that instructs them to consider whether a young person’s parents are a ‘resource’ or ‘create a barrier to learning’.

    Comment by archrights — March 17, 2007 @ 3:52 pm

  2. […] real problem There’s some thoughtful writing on Gillick competency over at Not Saussure (and I’m not just saying that because he gives the report to the ICO on children’s […]

    Pingback by The real problem « The ARCH Blog — March 17, 2007 @ 4:03 pm

  3. […] already moaned about this perversion of the notion of Gillick Competence and the Information Commissioner is none too happy about it, either. Neither is he happy about the […]

    Pingback by The things children say, eh? « Not Saussure — April 1, 2007 @ 10:15 pm

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