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Gillick rules OK: The Sue Axon case


Charles Foster,
Barrister,
Outer Temple Chambers,
London WC2

This article was first published in the Solicitors Journal S.J. (2006) Vol.150 No.5: 154-155:
10/2/2006 and is reproduced here by kind permission of the author and publisher.

Sue Axon has failed in her audacious attempt to sidestep Gillick. Her failure is an important milestone in the law relating to children’s rights, parental rights and parental duties. It will have important consequences for the way that medical professionals approach issues of clinical confidentiality when they are dealing with children.

What the claimant wanted

She was attacking, by way of judicial review, a 2004 Department of Health document snappily entitled ‘Best Practice Guidance for Doctors and other Health Professionals on the provision of Advice and Treatment to Young People under 16 on Contraception, Sexual and Reproductive Health’ (“the 2004 guidance”). The details of this document do not matter for present purposes. It is a model neither of legal learning or felicitous drafting.

The gist of her submission was that the 2004 guidance misrepresented the House of Lords decision in Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112, which must now be read in the light of Article 8 of the ECHR. If the 2004 guidance was Gillick-compliant, then Article 8 itself rendered the guidance unlawful. Properly understood, she said, the law meant that “a doctor was under no obligation to keep confidential advice and treatment he proposes to provide in respect of contraception, sexually transmitted infections and abortion, and must therefore not provide such advice and treatment without the parents’ knowledge unless to do so would or might prejudice the child’s physical or mental health so that it is in the child’s best interest not to do so.” She had a second submission, which was more powerful. If this was not the position in relation to all these forms of advice and treatment, surely it must be correct at least in relation to abortion. In a reserved judgment handed down on 23 January 2006, Silber J rejected her contentions: see R (on the application of Sue Axon) v Secretary of State for Health EWCA 372006 (Admin).

The big hurdle: Gillick

The starting point (and, as it turned out) the finishing point, was Gillick. Gillick related to the lawfulness of providing contraceptive advice or treatment to a girl under 16 with her parents’ consent. Lord Fraser, in a speech with which Lord Scarman and Lord Bridge expressly agreed, said, at 174:

“...there may well be cases, and I think there will be some cases, where the girl refuses either to tell her 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 allow him to inform her 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.”

Lord Fraser then fired a shot across the bows of doctors tempted to abuse the trust the court was reposing in them: “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 be failing to discharge his professional responsibilities, and I would expect him to be disciplined by his own professional body accordingly.” Stern words, but for obvious reasons the conduct of doctors in this area of practice is mighty difficult for the GMC to police effectively, even if it had the will.

The route to the Claimant’s defeat

The judgment in Axon can be summarised in a sentence: Gillick applies to the provision of all advice and treatment to children in relation to sexual matters, and that includes abortion (although the case for the disapplication of Gillick is stronger in relation to abortion). The route to that conclusion was a long and fascinating one.

The first possible way for Sue Axon to succeed was to enlist the help of Gillick. She contended that the 2004 guidance failed to emphasise, as she said Gillick did, that it would be unusual for a doctor to give relevant advice without parental consent or notification. She noted in particular that Lord Fraser hedged his famous guidelines round with caveats. One example makes the point: “….it points strongly to the desirability of her doctor being entitled in some cases, in the girl’s best interests, to give her contraceptive advice and treatment….” (p. 174: emphasis added). Lord Scarman, too, noted: “Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances….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…” (p. 189: emphasis added). Silber J gave this short shrift: the 2004 guidance adequately laid out Lord Fraser’s guidelines. There was no need to go further and state that they would only exceptionally be satisfied.

But there were more fundamental issues than this. At the heart of the debate was the tension between a child’s autonomy (which can be articulated in terms of Article 8 of the ECHR), the parent’s (and the family’s) right to family life, (which can also be articulated in terms of Article 8), and the parent’s duty to make decisions in the child’s best interests. It was common ground that an obligation of confidentiality was owed by clinicians to children under their care: see Venables v News Group Newspapers Ltd [2001] Fam 430; Re C (A Minor: Wardship: Medical Treatment) (No. 2) [1990] Fam 39. Sue Axon contended that the obligation to keep confidences was limited: it did not extend to keeping the child’s secrets from her parents. Parents are different, she said: they are responsible for the welfare of their children. If the law imposes that duty on parents, it is only fair that it should allow parents the information necessary to allow them to discharge it. There is also a significant public interest in promoting family life: the court can’t do that if it sanctions secrecy. It is well recognised that duties of confidentiality are not absolute: disclosure is always permitted if it is in the public interest to disclose: see, eg, A-G v Guardian Newspapers (No. 2) [1990] 1 AC 109. The public interest in disclosing information about proposed contraceptive, sexual health or abortion treatment is so strong that it should outweigh any interest in non-disclosure. If one analyses the obligation of confidentiality using the “conscionability” test (see R v Department of Health ex p Source Informatics Ltd. [2001] QB 423), one gets the same result: Doctors with a properly adjusted conscience would always disclose the relevant information to the parents. No, said the Secretary of State: the duty is not limited in this way. To hold that it is would be to drive a coach and horses through the whole law of medical confidentiality. It is not clear from the judgment exactly how he put this. He did say, though, that the whole issue had already been decided (as Silber J found it was), by Gillick.

Silber J found on the evidence before him that if a duty of confidentiality was not imposed this “would probably or might well deter young people from seeking advice and treatment on contraception, sexually transmitted diseases and abortion, and this would have undesirable and troubled consequences”: (paragraph 66). This was enough to dispose of the contention that the public interest in disclosure outweighed the public interest in disclosure. It was also enough, in due course, to allow the Secretary of State to take refuge (although in fact he did not have to), in Article 8(2).

There was a good deal of argument about Article 12 of the United Nations Convention on the Rights of the Child, (ratified by the UK) which provides that “State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of he child being given due weight in accordance with the age and maturity of the child.” This, thought, Silber J, was inconsistent with Sue Axon’s paternalistic submission as to how parental and children’s rights should relate to one another. He agreed with Thorpe LJ in Mabon v Mabon [2005] 3 WLR 460 who, considering the UN Convention, had said: “Unless we in this jurisdiction are to fall out of step with similar societies as they safeguard Article 12, we must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare.”

Sue Axon’s arguments under Article 8 of the ECHR met the same fate. Relying on X v Netherlands (1974) 2 DR 118 and Nielsen v Denmark (1988) 11 EHRR 175, she contended that amongst the Article 8 rights was a right of parental authority (having regard to the corresponding parental responsibilities), that ensuring respect for family life may include enforcing those rights, and that ensuring respect for family life will or may take precedence over avoiding any interference with the child’s family life.

Things had moved on since those cases, said the Secretary of State. We live in a braver and, if you are a child, freer world. And in any event they did not establish any parental rights to be informed about medical treatment. If anything the Article 8 arguments tended to support the right of children to have their medical confidences respected: see Z v Finland (1997) 25 EHRR 371 and MS v Sweden [1999] 28 EHRR 313. The gist of the Strasbourg jurisprudence was that parental authority dwindles as the child gets older. Put another way: as a child matures, the burden of showing ongoing family life, protected by Article 8, grows. There was no justification in ECHR authority or common sense, for holding that a parent retained an Article 8 right to parental authority in the context of medical advice about sexual matters where the child concerned understood and was able to deal adequately with the advice and its implications. Silber J agreed.

The final nail in Sue Axon’s forensic coffin was the finding under Article 8(2). If the 2004 guidance did interfere with a parent’s Article 8(1) rights, that interference was justified since it was “in accordance with the law” and “necessary in a democratic society….for the protection of health….or for the protection of the rights…of others”, as well as proportionate.

Silber J’s guidance

Silber J concluded by reiterating and slightly expanding Lord Fraser’s guidelines. His summary will be a much-quoted practitioner’s vade mecum.

“[A] medical professional is entitled to provide medical advice and treatment on sexual matters without the parent’s knowledge or consent provided he or she is satisfied of the following matters:

(1) that the young person although under 16 years of age understands all aspects of the advice. (In the light of Lord Scarman’s comments in Gillick at page 189C ….he or she must “have sufficient maturity to understand what is involved”: that understanding includes all relevant matters and it is not limited to family and moral aspects as well as all possible adverse consequences which might follow from the advice);

(2) that the medical professional cannot persuade the young person to inform his or her parents or to allow the medical professional to inform the parents that their child is seeking advice and/or treatment on sexual matters. (As stated in the 2004 Guidance, where the young person cannot be persuaded to involve a parent, every effort should be made to persuade the young person to help find another adult (such as another family member or a specialist youth worker) to provide support to the young person);

(3) that (in any case in which the issue is whether the medical professional should advise on or treat in respect of contraception and sexually transmissible illnesses) the young person is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment or treatment for a sexually transmissible illness ;

(4) that unless the young person receives advice and treatment on the relevant sexual matters, his or her physical or mental health or both are likely to suffer. ( In considering this requirement, the medical professional must take into account all aspects of the young person’s health) and

(5)that the best interests of the young person require him or her to receive advice and treatment on sexual matters without parental consent or notification.” (Paragraph 154)

He noted that “…. the best judges of a young person’s welfare are almost invariably his or her parents”: (Paragraph 2).

He concluded:

”… these guidelines have to be strictly observed and…. if they are not, the medical professional concerned can expect to be disciplined by his or her professional body…”
(Paragraph 156).

Conclusion

Gillick has had new life breathed into it. It extends beyond the provision of contraceptive services to the arena of abortion, where one might have thought it might have been less definitively authoritative. It has been the bridgehead for a new influx of children’s rights jurisprudence into English law. Where that is going to end is anyone’s guess.

The lay press wrote up the judgment as a complete catastrophe for Sue Axon and her camp. It is far too early to say, but that is not necessarily right. The Fraser guidelines, probably more honoured in the breach than the observance, have been highlighted again. The GMC has been told to take them seriously. Yes, the guidelines are difficult to police, but perhaps doctors will now have a re-read and re-think about (particularly) where the best interests of their teenage patients lie.

Summary

  • Gillick applies to the provision of contraceptive services, sexual health advice and treatment and abortion to under-16 year olds
  • It will be lawful for these services to be provided to under-16 year olds without notifying the patient’s parents if and only if the medical professional involved has applied the guidelines laid down by Lord Fraser in Gillick
  • Those guidelines are to be applied strictly, and the GMC should take breach seriously
  • Parental ECHR Article 8 rights dwindle as the child grows older