NHS Trust v X (In the matter of X (A Child) (No 2)) [2021] EWHC 65 (Fam)

“This case is about whether [X], a young woman declared to be Gillick competent and “mature and wise beyond her years”, should be afforded the exclusive right to decide her own medical care in the same way as her peers aged 18 years and older’. ‘She is a baptised Jehovah’s Witness…Unhappily, she suffers from serious sickle cell syndrome.’ The ‘conventional wisdom’ prevails: a refusal to consent to medical treatment by a Gillick competent minor is not determinative.

High Court’s Inherent Jurisdiction And Children

It is important to note, in relation to anyone under 18, the role played by the High Court. A decision by a parent to consent or to refuse to consent to treatment may be overridden by the Court in exceptional circumstances. In cases where a child or young person cannot be admitted and/or treated informally, and the criteria for detention under the Act are not met, legal advice should be obtained on whether to seek the assistance of the High Court. The court’s authorisation may be sought by way of an order or declaration, under its inherent jurisdiction, or for a section 8 order under the Children Act 1989. Whether the court is prepared to assist will depend on the facts of the particular case. It should also be noted that the Court of Protection can make a deprivation of liberty order in respect of young people aged 16 and 17. (Code of Practice19.52)

‘There is now ample authority for the proposition that the inherent powers of the court under its parents patriae jurisdiction are theoretically limitless and they certainly extend beyond the powers of the natural parent. The court does have the power to override the refusal of a minor, whether over or under 16, and even if ‘Gillick competent.’ Per Lord Donaldson.

The High Court took the unusual course of invoking the parents patriae jurisdiction to make A a ward of Court in Re An NHS Trust v A [2014] EWHC 920 (Fam) and made declarations that it was in her best interests to have a nasojejunal tube inserted through which she would receive fluids, nutrition and medication. The child and her mother both refused the proposed treatment. A was 15 year old who, weighed less than 6 stone and had suffered dramatic weight loss as a result of persistent vomiting. She was found not to have capacity to participate in treatment decisions. Her strongly expressed resistance to the proposed treatment was given great weight but was not determinative. The treatment was urgent and her best interests required declarations in relation to medical treatment.

(d) Where child under 16 is not competent

MCA 2005
The MCA is generally not applicable to under 16s

Parental responsibility
If it is decided that the child is not competent, (and arguably even where the child is competent- see below), then admission and/or treatment may be authorised by someone with parental responsibility as long as it does not amount to a deprivation of liberty. Whilst it may be appropriate to rely upon parental consent in some circumstances, but it has limits. Consider the Scope of Parental Responsibility (SPR). If a child lacks competence and admission/treatment amounts to a deprivation of liberty, the MHA should be employed, if the criteria are met. The 2015 Re D decision held that a parent may be able to consent to their child’s confinement, but there are limits to this: a) the child lacks competence and b) the parents are acting within the SPR. (A Local Authority v D [2015] EWHC 3125) There is little guidance from the courts on the question of what parents can consent to, so it important that mental health professionals work with the guidance in the MHA Code and updates in case law on the scope of parental responsibility

If a competent under 16 year old refuses admission and/or treatment, or a non competent under 16 year old requires admission and /or treatment which is outside of the scope of parental responsibility then admission under the MHA will need to be considered if the criteria are met.

(c) Competent Children under 16

There is no presumption of competence. Whether a child under 16 can consent to treatment depends on the assessment of the ‘competence’ of the particular child to consent to the treatment in question. In legal jargon, the issue is whether the child is ‘Gillick competent’ (which came from the well known case involving Victoria Gillick’s challenge to the legality of the Health Authority giving children contraception without parental consent). ‘As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed’: Lord Scarman in Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112.

When considering whether a child has the competence to decide about the proposed intervention, practitioners may find it helpful to consider the following questions:

• Does the child understand the information that is relevant to the decision that needs to be made?
• Can the child hold the information in their mind long enough so that they can use it to make the decision?
• Is the child able to weigh up that information and use it to arrive at a decision?
• Is the child able to communicate their decision (by talking, using sign language or any other means)? (Code of Practice 19:34-37)

Practioners should note that this guidance is similar to the functional test for the assessment of capacity, but there is no diagnostic test, because a child may lack competence solely because they have not yet developed the ‘sufficient intelligence and understanding’ required

If the child is Gillick competent, then this means that the child can give a valid consent to treatment, and it would be ‘inadvisable’ to seek to override by relying on the consent ot someone with parental responsibility. Although in the past the courts have found that a person with parental responsibility can overrule their child’s refusal, such decisions were made before the introduction of the HRA and since then court decisions concerning children and young people have given greater weight to their views’.(MHA CoP 19.39)

(b) Where the 16/17 year old lacks capacity

MCA 2005

Since the MCA 2005 generally applies to 16 and 17 year olds, then the presumption of capacity in s.1 MCA 2005 will also apply. In assessing capacity s.2 and s.3 MCA 2005 should be applied. For the application of the MCA 2005 to under 18s, see chapter 12 of the MCA Code. For an overview of the application of the overall legal framework in the context of treatment for mental disorder, see chapter 19 of the MHA 1983 Code (2015).

What is the position where the young person, following assessment, is found to lack capacity for the proposed treatment?

Parental responsibility

If it is decided that the child lacks capacity, (and arguably where the child is capable- see below), then treatment may be authorised by someone with parental responsibility (PR) if it is appropriate to do so. However parental responsibility cannot authorise a deprivation of liberty. Practioners should seek the guidance of the Code of Practice in regard to decisions within the scope of parental responsibility (19;38-43)

Treatment may also be authorised under the MCA 2005 – as for adults- though note that a child cannot appoint an LPA, so those provisions will not apply. The MCA cannot authorise a deprivation of liberty and deprivation of liberty safeguards are not available to those under 18

If a capacitous 16/17 year old refuses admission and/or treatment, or a non capacitous 16/17 year old requires admission and /or treatment which is outside of the scope of parental responsibility then admission under the MHA will need to be considered if the criteria are met.

Mental Health Law in Specialised Areas
Authors: Dr Dina Gazizova, Consultant Psychiatrist, Learning Disability Service & Panel member – London S12/AC Approvals Panel
Denista Wincey, Approvals Lead – London S12/AC Approvals Panel

Defining Mental Disorder

In this Module, we will consider how the definition of mental disorder for the purpose of the MHA 1983 changed in November 2008, when the relevant amending provisions of the MHA 2007 came into effect, and the potential impact of such amendments. We will briefly consider the provisions under the MHA 1983 as they were before the MHA 2007 amendments.

Purpose of Definitions

The legal purpose served by defining mental disorder, is to identify as far as practicable the group of citizens to whom the statutory provisions apply, and the circumstances in which they may find themselves subject to compulsory powers. This is important, since if a person does not fall within the definition of mental disorder set out in s.1 of the MHA 1983, then the MHA 1983 will simply not apply to them.

(a) Young Persons aged 16 and 17 years with Capacity

Statute law provides that those aged 16 or over are presumed ‘old enough’ to consent to admission and/or treatment.
This means that the young person with capacity can give a valid consent to treatment/ admission, irrespective of the views of someone with parental responsibility.(S131 MHA 83)

Family Law Reform Act 1969

S.8 [8.-(1)] of the Family Law Reform Act 1969 provides ‘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.’

Issues for RCs to consider

• Have I adequately addressed the statutory criteria?
  [In a Nearest Relative Barring Review have I dealt with the question of dangerousness?]
• In relevant cases, have I assessed the patient’s capacity in relation to the review?
• Have I discussed my report with the patient?
• Have I arranged for the patient to be ‘debriefed’ after the review?
• How do I deal with a panel which strays beyond its brief?
• How do I deal with a ‘hostile’ legal representative or panel member?
• In what circumstances might I want to be legally represented?
• What do I do if I feel that the panel’s decision is flawed?

Further appeals

A tribunal decision can be appealed to the Upper Tribunal, but only on a point of law.

An appeal from a Managers’ Panel would have to be by way of judicial review.

Procedure

The Code of Practice has chapters on the tribunal (chapter 12) and Hospital Manager reviews (chapter 38) which should be read.

The tribunal operates under the Tribunal Rules. A majority decision is permitted.

Managers’ Panels operate under guidance provided by the Trust or independent sector provider. Trusts will have their own policy for Managers’ review. Panels require at least 3 members to agree to discharge the patient (in practice this means a unanimous decision as panels are usual made up of 3 members).

The Tribunal may make directions and recommendations.

Managers’ panels occasionally make recommendations but these are not binding.