In Gillick v West Norfolk and Wisbech Area Health Authority (1986) the UK House of Lords held that minors under the age of 16 could access contraceptive advice and treatment in their own right provided they satisfied a test which became known as “Gillick competence.” Lord Fraser said:
Provided the patient … 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. (P. 409.)
As a result, Gillick competent minors were able to consent to treatment and medical examination, and while they might be encouraged to involve their parents, they were entitled to keep the matter confidential.
In Life without Gillick, Adolescent sexual and reproductive healthcare in Ireland, published in Clinical Ethics, Barry Lyons and Mary Donnelly remind us of Gillick’s value. They articulate clearly and compellingly what is lost when a jurisdiction declines to endorse Gillick’s central premise.
Widely considered a landmark case, Gillick has since been applied in new non-medical contexts such as adoption. The United Nations Convention on the Rights of the Child’s emphasis on the rights of the child and the primacy of best interests was in tune with Gillick and several other common law jurisdictions adopted the decision or a version of it. Ireland ratified the Convention in 1992, but as Lyons and Donnelly describe, the historical emphasis on children as objects of parental rights and duties has resulted in a lacuna in the law.
Mrs. Gillick was a Roman Catholic mother of ten children. She sought assurance that guidance recognising that minors could seek confidential advice on contraception or abortion would not apply to her five daughters until they turned 16. Not only did she lose her claim, but the test applied to uphold the child’s right bears her name. The enactment of the UK Human Rights Act 1998 led to a subsequent unsuccessful challenge by Mrs. Axon in 2006. Though some parents lament the diminution of control and authority Gillick heralds, in England and Wales the Children Act 1989 is clear that parental responsibility includes not only rights and powers but also duties and responsibilities and that in matters relating to the upbringing of the child, the child’s welfare is the paramount consideration.
Ireland is Britain’s closest neighbour, but it is not part of the United Kingdom which comprises Scotland, Wales, Northern Ireland and England. It has been a free state since 1922 and as such is not bound by the UK Supreme Court (previously House of Lords) decisions, including Gillick. While several other common law countries set out mature minor laws, for Ireland the matter of child competence proved too hot a potato to pick up.
The absence of relevant legal provisions is partially addressed through Irish Medical Council guidance requiring that parental consent be obtained as a “general rule” but allowing that parents can be excluded in “unusual” circumstances. Alas, guidance does not have the status of law and as such provides only limited reassurance for minors who seek confidential sexual or reproductive advice or treatment, as well as for the health professionals who provide it.
Lyons and Donnelly point to some of the consequences of legal uncertainty in Ireland. The most compelling is the public health impact of minors being driven away from health support if they wish to keep their sexually active status from their parents or carers. Since 2018, abortion has been lawful in Ireland (including) in circumstances where the pregnancy is under 12 weeks gestation. But an impediment to the effective operation of the Act is that it does not address access by minors. For health professionals who support those minors who seek their confidential assistance in sexual and reproductive healthcare, Lyons and Donnelly point to occupational distress around potential medico-legal implications.
They make a compelling case for reform. The lacuna should be filled by recognising minors’ rights to reproductive healthcare. Failures to do so, they point out, will likely “fall most heavily on the most vulnerable individuals who, for whatever reason, cannot rely on family support to help them negotiate the complex world of adolescent sexuality.”
