(In Open Court)
In the matter of X (A Child) (No 2)
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a judge of the High Court)
| A NHS TRUST
|- and -
Mr SHANE BRADY (instructed by Richard Cook Solicitors) for the Respondent
Ms VICTORIA BUTLER-COLE QC and Mr ALEXANDER RUCK KEENE (instructed by Cafcass Legal) for the Advocate to the Court Cafcass Legal
Hearing dates: 18-19 November 2020
FOR HANDING DOWN
Crown Copyright ©
Sir James Munby :
"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 not refusing all medical treatment. She is exercising a choice about how she wishes to fight her disease, a choice that is grounded in her human dignity, self-determination, bodily autonomy, and religious conscience. The Applicant seeks to deny [X] her autonomy, requesting a two-year "rolling order" which authorises doctors to repeatedly impose a medical procedure on [X] which she finds deeply repugnant. The Applicant further asks that the "rolling order" remain effective right up to the point [X] reaches the arbitrary chronological age of 18.
The Applicant's actions and request for a two-year "rolling order" comprise severe and profound violations of [X]'s rights guaranteed at common law, under the Mental Capacity Act 2005, and Articles 3, 5, 8, 9 of the European Convention on Human Rights taken alone and in conjunction with Article 14.
[X] requests this Court reject the Applicant's application in the strongest and clearest of terms and declare that [X], as a person with decisional capacity who is "mature and wise beyond her years", has the exclusive legal right to decide her own medical care, including refusal of consent to blood transfusions."
That is a powerful plea which demands both respect and the most careful and anxious scrutiny.
"8 Mr Brady's argument, which is powerful and demands much fuller response than I can give it today, is that to impose this form of treatment on X is to impinge impermissibly upon her autonomy as, I emphasise, a Gillick competent child of almost 16. He submits that the law has moved on, not merely in consequence of the Human Rights Act 1998, but in more general developments, so that the position which had seemingly been reached by the Court of Appeal in the two cases of In re R (A Minor) (Wardship: Consent to Treatment)  Fam 11 and In re W (A Minor) (Medical Treatment: Court's Jurisdiction)  Fam 64 in the early 1990s no longer reflects the law as it is. Those are powerful arguments which deserve full analysis and proper consideration. Unhappily, we do not have time for that today in the light of Dr C's medical evidence
10 It seems to me that I have, for the purposes of today, to approach this matter on the basis of the law as it currently appears to be ...
14 Mr Brady, in an enormously helpful and detailed skeleton argument for which I thank him, has put together arguments suggesting that this view of the law is in need of urgent re-analysis and review, partly in the light of the Human Rights Act 1998, partly in the light of more general recent legal developments, and partly in the light of the very important decision of the Supreme Court of Canada to which he powerfully drew my attention: AC v Manitoba  SCC 30,  2 SCR 181. These are arguments which require to be dealt with, but it is quite impossible for me, within the timescale that Dr C's evidence sets out, to engage properly with these arguments today. It seems to me that I have no realistic choice, but to take the law as being that which was laid down by the Court of Appeal in the two cases I have mentioned, the best part of 30 years ago "
"18 It is a matter of profound concern to me that, for whatever reason, this case has come back before the court, having previously been before the court in May , in a tremendous rush and in circumstances approaching medical crisis. Now, there is no point in seeking to explore why that has happened, let alone to apportion blame, but it has had the profoundly adverse consequence, the profoundly troubling consequence, that the court has not been able to deal with it in the way in which, ideally, the court would wish to deal with it.
19 It would be nothing short of intolerable if I were simply to make the order I have made and left the matter to await the next potential crisis, because my understanding of the medical evidence is that a crisis of the sort which has erupted in recent days, like the crisis which erupted in May of this year, may be a recurrent feature of X's condition. It seems to me imperative that the court, sooner rather than later, and before we have the next crisis, is able to give proper attention to Mr Brady's very important submissions so that the next time, if there is a next time and the case comes back to court, there will be a clear legal framework available for the resolution of the next crisis. I would like the parties to consider how best we could deal with that.
20 There is also the question of whether the court should make, as it were, an order covering similar eventualities over the next two years until X reaches the age of 18. That is a matter which needs to be dealt with urgently and as part of this urgent hearing which I have in mind. However, it does seem to me something which is going to require careful argument because, as I indicated during the course of arguments, whereas, at present advised, I have little doubt the court has power to make such an order, I will require considerable persuasion that it is proper for the court to make such an order in this kind of case.
21 It does seem to me that the proper way forward to avoid this unfortunate scramble to justice, because that is all we have been able to achieve today, is to make sure that these important issues that Mr Brady very properly wants to raise, can be dealt with in early course at a hearing where there has been adequate time for preparation, adequate time for argument and adequate time for judicial reflection."
"to determine the following issues: (a) Whether following the enactment of the Human Rights Act 1998 and other developments in the law, the consent to or refusal of medical treatment by a capacitous / Gillick competent minor under the age of 18 should be determinative; (b) Whether it is in [X's] best interests to have further "top up" blood transfusions in the event of further serious deterioration in her medical condition and if clinically indicated during this admission and/or subsequent admissions until she reaches the age of 18.
"Consent by persons over 16 to surgical, medical and dental treatment.
(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.
(2) In this section "surgical, medical or dental treatment" includes any procedure undertaken for the purposes of diagnosis, and this section applies to any procedure (including, in particular, the administration of an anaesthetic) which is ancillary to any treatment as it applies to that treatment.
(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."
"35 Religion whatever the particular believer's faith is not the business of government or of the secular courts, though the courts will, of course, pay every respect to the individual's or family's religious principles. Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention), after all, demands no less. The starting point of the common law is thus respect for an individual's religious principles, coupled with an essentially neutral view of religious beliefs and a benevolent tolerance of cultural and religious diversity.
36 It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are 'legally and socially acceptable' (Purchas LJ in Re R (A Minor) (Residence: Religion)  2 FLR 163 at 171) and not 'immoral or socially obnoxious' (Scarman LJ in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239 at 244) or 'pernicious' (Latey J in Re B and G (Minors) (Custody)  FLR 134 at 157, referring to scientology)."
"1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
"37 The protection of Art 9 is qualified in two ways. In the first place, the European Convention protects only religions and philosophies which are 'worthy of respect in a "democratic society" and are not incompatible with human dignity': see Campbell and Cosans v United Kingdom (No 2) (Application No 7511/76) (1982) 4 EHRR 293, at para 36 Secondly, whilst religious belief and thought are (subject to that overriding qualification) given absolute protection by Art 9(1), the 'manifestation' of one's religion in 'worship, teaching, practice and observance' is subject to the qualifications referred to in Art 9(2) of the European Convention.
38 The important point for present purposes is that the European Convention forbids the State to determine the validity of religious beliefs and in that respect imposes on the State a duty of what the Strasbourg court has called neutrality and impartiality: see, for example, Moscow Branch of the Salvation Army v Russia (Application No 72881/01) (2006) 44 EHRR 912, at para 58, where the court said that:
"The State's duty of neutrality and impartiality is incompatible with any power on the State's part to assess the legitimacy of religious beliefs."
"43 Some manifestations of religious practice may be regulated if contrary to a child's welfare. Although a parent's views and wishes as to the child's religious upbringing are of great importance, and will always be seriously regarded by the court, just as the court will always pay great attention to the wishes of a child old enough to be able to express sensible views on the subject of religion, even if not old enough to take a mature decision, they will be given effect to by the court only if and so far as and in such manner as is in accordance with the child's best interests. In matters of religion, as in all other aspects of a child's upbringing, the interests of the child are the paramount consideration.
44 There are many examples of the working out of these principles in the family courts. Sometimes, as in the cases involving blood transfusions for the children of Jehovah's Witnesses, the issue is literally one of life or death (using those words in the secular sense). The tenets and faith of Jehovah's Witnesses will not prevent the court ordering a child to receive a blood transfusion, even though both the parents and the child vehemently object: see, for example, Re E (A Minor) (Wardship: Medical Treatment)  1 FLR 386."
I gave other examples (paras 45-46).
"We live in a tolerant society. There is no reason at all why the mother should not espouse the beliefs and practice of Jehovah's Witnesses."
The Strasbourg Court, unsurprisingly, has adopted precisely the same approach: Jehovah's Witnesses of Moscow v Russia (Application No 302/02) (2011) 53 EHRR 141.
"80 Thirdly, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead what kind of person they want to be and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child's opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a 'judicial parent'', is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child's ability to make such decisions in future.
81 The point arises in its most obvious and extreme form where the issue before the court is whether to require a teenager to submit against their wishes to life-saving medical treatment. There, as Nolan LJ once observed (In Re W (A Minor) (Medical Treatment: Court's Jurisdiction)  Fam 64 at 94), the duty of the court is to ensure so far as it can that children survive to attain the age of 18 at which an individual is free to do with his life what he wishes."
"the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight. One cannot, as it were, attribute any particular a priori weight or importance to P's wishes and feelings; it all depends, it must depend, upon the individual circumstances of the particular case. And even if one is dealing with a particular individual, the weight to be attached to their wishes and feelings must depend upon the particular context; in relation to one topic P's wishes and feelings may carry great weight whilst at the same time carrying much less weight in relation to another topic."
Very similar views were expressed by Hayden J in Re N; M v (1) Mrs N (By her Litigation Friend the Official Solicitor) (2) Bury Clinical Commissioning Group (3) A Care Provider  EWCOP 76,  COPLR 88, para 28.
"The nearer to the borderline the particular adult, even if she falls on the wrong side of the line, the more weight must in principle be attached to her wishes and feelings, because the greater the distress, the humiliation and indeed it may even be the anger she is likely to feel the better she is able to appreciate that others are taking on her behalf decisions about matters which vitally affect her matters, it may be, as here, of an intensely private and personal nature."
"The wishes and feelings of the incapacitated person will be an important element in determining what is, or is not, in his best interests. Where he is actively opposed to a course of action, the benefits which it holds for him will have to be carefully weighed against the disadvantages of going against his wishes, especially if force is required to do this."
"9 I leave on one side cases where the mother has for whatever reason so little appreciation of what is going on as not to be able to express any wishes and feelings. This, I emphasise, is not such a case. The point is very simple and profoundly important. This court in exercise of its inherent jurisdiction in relation to children undoubtedly has power to authorise the use of restraint and physical force to compel a child to submit to a surgical procedure: see Re C (Detention: Medical Treatment)  2 FLR 180 and Re PS (Incapacitated or Vulnerable Adult)  EWHC 623 (Fam),  2 FLR 1083. I say nothing about how this power should appropriately be exercised in the case of other forms of medical or surgical intervention. In the case of the proposed termination of a pregnancy, however, the point surely is this. Only the most compelling arguments could possibly justify compelling a mother who wished to carry her child to term to submit to an unwanted termination. It would be unwise to be too prescriptive, for every case must be judged on its own unique facts, but I find it hard to conceive of any case where such a drastic form of order such an immensely invasive procedure could be appropriate in the case of a mother who does not want a termination, unless there was powerful evidence that allowing the pregnancy to continue would put the mother's life or long-term health at very grave risk. Conversely, it would be a very strong thing indeed, if the mother wants a termination, to require her to continue with an unwanted pregnancy even though the conditions in s 1 of the 1967 Act are satisfied.
10 A child or incapacitated adult may, in strict law, lack autonomy. But the court must surely attach very considerable weight indeed to the albeit qualified autonomy of a mother who in relation to a matter as personal, intimate and sensitive as pregnancy is expressing clear wishes and feelings, whichever way, as to whether or not she wants a termination."
" the question as to whether a person under the age of 16 is Gillick competent to make the relevant decision will depend on the nature of the treatment proposed as well as that person's individual characteristics. The assessment is necessarily an individual one. Where the decision is significant and life changing then there is a greater onus to ensure that the child understands and is able to weigh the information."
They added (para 145):
"Gillick makes clear that any decision is treatment and person specific."
"The judge held that in exercising the wardship jurisdiction he could not override the decision of a "competent" minor to refuse treatment, but that R's mental condition precluded her from achieving that competence. Concluding that the proposed treatment was in her best interests he accordingly granted the application.
On appeal by the Official Solicitor [contending that the judge was correct in law but wrong on the facts]:
Held, dismissing the appeal, that the court in the exercise of the wardship jurisdiction was entitled to override a minor's decision either consenting to or refusing treatment, irrespective of his or her "competence;" that in any event, having regard to the fluctuating nature of her illness, R was not "competent" to give or withhold her consent, and that the judge's order had been properly made."
"that (a) if the child has the right to give consent to medical treatment, the parents' right to give or refuse consent is terminated and (b) the court in the exercise of its wardship jurisdiction is only entitled to step into the shoes of the parents and thus itself has no right to give or refuse consent."
"There can be concurrent powers to consent. If more than one body or person has a power to consent, only a failure to, or refusal of, consent by all having that power will create a veto.
A "Gillick competent" child or one over the age of 16 will have a power to consent, but this will be concurrent with that of a parent or guardian.
The court in the exercise of its wardship or statutory jurisdiction has power to override the decisions of a "Gillick competent" child as much as those of parents or guardians."
"The second question is whether the court has power to override the decision of a competent minor who is a ward [he had earlier made clear that he was using the word "competent" "in the Gillick sense"]. Again it can arise in two forms: the court may be minded to consent when the ward does not (which would be the situation here, if I had found on the evidence that the ward is competent to take the decision); or the court may be minded not to consent when the ward does (as in the Gillick hypothetical case). I say at once that in my judgment the Gillick case did not touch on this question.
It can be argued that a wardship judge, exercising the authority of the Crown as national parent, should have no greater powers than a natural parent. I have a good deal of sympathy with that argument, for I accept as a general principle that good reason must be shown before the state exercises any power to control the decisions of a competent person, whether adult or minor, which only concern his own well-being.
There is, however, a group of decisions mainly of Family Division judges, which supports the opposite conclusion
Faced with such a substantial consensus of opinion among judges who have to deal with this problem from day to day, I conclude that the powers of a wardship judge do indeed include power to consent to medical treatment when the ward has not been asked or has declined. If that means that the wardship judge has wider powers than a natural parent (on the extent of which I have declined to express an opinion), it seems to me to be warranted by the authorities to which I have referred.
Then there is the converse case in wardship, where the ward consents but the court is minded either not to consent or positively to forbid treatment. Does the judge in such a case have an overriding power, which the natural parent of a competent child under the age of 16 does not have by reason of the Gillick decision? the trend of the cases seems to show that, if the treatment would constitute an important step in the child's life, the court does have that power."
"We are not here solely concerned with the developing maturity of a 15-year-old child but with the impact of a mental illness upon her. The Gillick test is not apt to a situation where the understanding and capacity of the child varies from day to day according to the effect of her illness. I would reject the application of the Gillick tests to an on/off situation of that kind."
"[Counsel] submits, rightly as I think, that consent by a child between the ages of 16 and 18 is no more effective than that of an adult if, due to mental disability, the child is incapable of consenting."
"Held, that on its true construction section 8 of the Family Law Reform Act 1969 did not confer on a minor who had attained the age of 16 an absolute right to determine whether or not he received medical treatment but enabled him, for the limited purpose of protecting his medical practitioner from prosecution or from any claim in trespass, to give consent to such treatment as effectively as if he were an adult; that, although a minor of any age who had sufficient maturity might consent to treatment, his refusal to give consent could not overrule consent given by the court; [and] that in exercising its inherent jurisdiction the court would take particular account of the minor's wishes, the importance of which increased with his age and maturity, but would override them where his best interests so required."
"The wording of subsection (1) shows quite clearly that it is addressed to the legal purpose and legal effect of consent to treatment, namely, to prevent such treatment constituting in law a trespass to the person, and that it does so by making the consent of a 16- or 17-year-old as effective as if he were "of full age." No question of "Gillick competence" in common law terms arises. The 16- or 17-year-old is conclusively presumed to be "Gillick competent" or, alternatively, the test of "Gillick competence" is bypassed and has no relevance. The argument that W, or any other 16- or 17-year-old, can by refusing to consent to treatment veto the treatment notwithstanding that the doctor has the consent of someone who has parental responsibilities, involves the proposition that section 8 has the further effect of depriving such a person of the power to consent. It certainly does not say so. Indeed if this were its intended effect, it is difficult to see why the subsection goes on to say that it is not necessary to obtain the parents' consent, rather than providing that such consent, if obtained, should be ineffective. Furthermore such a construction does not sit easily with subsection (3) which preserves the common law as it existed immediately before the Act which undoubtedly gave parents an effective power of consent for all children up to the age of 21, the then existing age of consent
The most promising argument in favour of W having an exclusive right to consent to treatment and thus, by refusing consent, to attract the protection of the law on trespass to the person, lies in concentrating upon the words "as effective as it would be if he were of full age." If she were of full age her ability to consent would have two separate effects. First, her consent would be fully effective as such. Second, a failure or refusal to give consent would be fully effective as a veto, but only because no one else would be in a position to consent. If it is a possible view that section 8 is intended to put a 16- or 17-year-old in exactly the same position as an adult and there is thus some ambiguity, although I do not think that there is, it is a permissible aid to construction to seek to ascertain the mischief at which the section is directed."
"There is ample authority for the proposition that the inherent powers of the court under its parens patriae jurisdiction are theoretically limitless and that they certainly extend beyond the powers of a natural parent There can therefore be no doubt that it has power to override the refusal of a minor, whether over the age of 16 or under that age but "Gillick competent." It does not do so by ordering the doctors to treat which, even if within the court's powers, would be an abuse of them or by ordering the minor to accept treatment, but by authorising the doctors to treat the minor in accordance with their clinical judgment, subject to any restrictions which the court may impose."
"It will be readily apparent that the section is silent on the question which arises in the present case, namely whether a minor who has attained the age of 16 years has an absolute right to refuse medical treatment. I am quite unable to see how, on any normal reading of the words of the section, it can be construed to confer such a right. The purpose of the section is clear: it is to enable a 16-year-old to consent to medical treatment which, in the absence of consent by the child or its parents, would constitute a trespass to the person. In other words, for this purpose, and for this purpose only, a minor was to be treated as if it were an adult. That the section did not operate to prevent parental consent remaining effective, as well in the case of a child over 16 as in the case of a child under that age, is apparent from the words of subsection (3)."
"I am therefore satisfied that there is no interpretation of section 8 of the Act of 1969 and certainly no "settled" interpretation which persuades me that my view of the clear meaning of the section is wrong. I express no view on the question whether a young person, whether over the age of 16 or under that age if "Gillick competent," should have complete autonomy in the field of medical treatment. That is a matter of social policy with which Parliament can deal by appropriate legislation if it wishes to do so. What I am clear about is that Parliament has not conferred such autonomy on a 16- to 18-year-old child by virtue of section 8 of the Act of 1969, and that the common law, as interpreted by the House of Lords in Gillick's case does not do so either."
"we decided that the court has the power in its inherent jurisdiction to override W's refusal to undergo the necessary treatment. In saying that the power exists we were doing no more than to reaffirm the unlimited nature of the court's inherent jurisdiction over minors, a jurisdiction which empowers and may require the court to override the wishes of a minor, even if he or she has sufficient understanding to make an informed decision."
"it is impossible to my mind to regard section 8 as supporting the general proposition that in the exercise of its inherent jurisdiction the court should allow the child's decision to determine the matter, whether or not the court thinks that this is in the child's best interests. If the court took this view, it would be abdicating its responsibility.
Nor, to my mind, is the significance of section 8 enhanced by the decision in Gillick's case The general approach adopted by the House of Lords to the weight which should be attached to the views of a child who has sufficient understanding to make an informed decision is clearly of great importance, but it is essential to bear in mind that their Lordships were concerned with the extent of parental rights over the welfare of the child. They were not concerned with the jurisdiction of the court. It is of the essence of that jurisdiction that the court has the power and the responsibility in appropriate cases to override the views of both the child and the parent in determining what is in the child's best interests. Authoritative and instructive as they are, the speeches in Gillick's case do not deal with the principles which should govern the exercise of this court's jurisdiction in the present case. In my judgment, those principles are to be found in section 1 of the Children Act 1989. The child's welfare is to be the paramount consideration: see section 1(1). In giving effect to that consideration, the court is to have particular regard to the factors set out in section 1(3). This subsection requires the court to have regard in particular to: (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; and (g) the range of powers available to the court.
In other words, in the circumstances of the present case the wishes and feelings of W, considered in the light of her age and understanding, are the first of the factors to which the court must have regard, but the court must have regard also to such of the other factors as may be relevant when discharging its overall responsibility for W's welfare."
"This is not, however, to say that the wishes of 16- and 17-year-olds are to be treated as no different from those of 14- and 15-year-olds. Far from it. Adolescence is a period of progressive transition from childhood to adulthood and as experience of life is acquired and intelligence and understanding grow, so will the scope of the decision-making which should be left to the minor, for it is only by making decisions and experiencing the consequences that decision-making skills will be acquired. As I put it in the course of the argument, and as I sincerely believe, "good parenting involves giving minors as much rope as they can handle without an unacceptable risk that they will hang themselves." As Lord Hailsham of St Marylebone LC put it in In re B (A Minor) (Wardship: Sterilisation)  AC 199, 202, the "first and paramount consideration [of the court] is the well being, welfare or interests [of the minor]" and I regard it as self-evident that this involves giving them the maximum degree of decision-making which is prudent. Prudence does not involve avoiding all risk, but it does involve avoiding taking risks which, if they eventuate, may have irreparable consequences or which are disproportionate to the benefits which could accrue from taking them. I regard this approach as wholly consistent with the philosophy of section 1 of the Children Act 1989, and, in particular, subsection (3)(a)."
"Since Parliament has not conferred complete autonomy on a 16-year-old in the field of medical treatment, there is no overriding limitation to preclude the exercise by the court of its inherent jurisdiction and the matter becomes one for the exercise by the court of its discretion. Nevertheless the discretion is not to be exercised in a moral vacuum. Undoubtedly the philosophy behind section 8 of the Act of 1969, as well as behind the decision of the House of Lords in Gillick's case is that, as children approach the age of majority, they are increasingly able to take their own decisions concerning their medical treatment. In logic there can be no difference between an ability to consent to treatment and an ability to refuse treatment Accordingly the older the child concerned the greater the weight the court should give to its wishes, certainly in the field of medical treatment. In a sense this is merely one aspect of the application of the test that the welfare of the child is the paramount consideration. It will normally be in the best interests of a child of sufficient age and understanding to make an informed decision that the court should respect its integrity as a human being and not lightly override its decision on such a personal matter as medical treatment, all the more so if that treatment is invasive. In my judgment, therefore, the court exercising the inherent jurisdiction in relation to a 16- or 17-year-old child who is not mentally incompetent will, as a matter of course, ascertain the wishes of the child and will approach its decision with a strong predilection to give effect to the child's wishes. (The case of a mentally incompetent child will present different considerations, although even there the child's wishes, if known, must be a very material factor.) Nevertheless, if the court's powers are to be meaningful, there must come a point at which the court, while not disregarding the child's wishes, can override them in the child's own best interests, objectively considered. Clearly such a point will have come if the child is seeking to refuse treatment in circumstances which will in all probability lead to the death of the child or to severe permanent injury. An example of such a case was [Re E (A Minor) (Wardship: Medical Treatment)  1 FLR 386], which came before Ward J on 21 September 1990. There a 15-year-old Jehovah's Witness, and his parents of the same faith, were refusing to allow doctors to give the boy a blood transfusion without which there was a strong risk (on the medical evidence) that the boy would die. Ward J authorised the blood transfusion. In my judgment he was right to do so. In the course of his judgment he said:
"There is compelling and overwhelming force in the submission of the Official Solicitor that this court, exercising its prerogative of protection, should be very slow to allow an infant to martyr himself."
"I do not think it would be helpful to try to define the point at which the court should be prepared to disregard the 16- or 17-year-old child's wishes to refuse medical treatment. Every case must depend on its own facts. What I do stress is that the judge should approach the exercise of the discretion with a predilection to give effect to the child's wishes on the basis that prima facie that will be in his or her best interests."
"I would emphasise that the only aspect of W's welfare with which we are concerned in the present case is her refusal to undergo a particular form of treatment for anorexia. So far in this judgment I have been principally concerned to explain why, as it seems to me, the court has not only the power but the inescapable responsibility of deciding, in that specific context, what is to be done in the interests of her welfare. I am very far from asserting any general rule that the court should prefer its own view as to what is in the best interests of the child to those of the child itself. In considering the welfare of the child, the court must not only recognise but if necessary defend the right of the child, having sufficient understanding to take an informed decision, to make his or her own choice. In most areas of life it would be not only wrong in principle but also futile and counter-productive for the court to adopt any different approach. In the area of medical treatment, however, the court can and sometimes must intervene.
It will, I think, be apparent from what I have said that even in the case of normal medical treatment I cannot accept [counsel's] proposition that the child's decision should determine the matter. The determination must always be that of the court. If one is then to try and specify the grounds upon which it would be right for the court to intervene I do not for my part find it particularly helpful to speak in terms of special or extraordinary cases as distinct from normal cases One must, I think, start from the general premise that the protection of the child's welfare implies at least the protection of the child's life. I state this only as a general and not as an invariable premise because of the possibility of cases in which the court would not authorise treatment of a distressing nature which offered only a small hope of preserving life. In general terms, however, the present state of the law is that an individual who has reached the age of 18 is free to do with his life what he wishes, but it is the duty of the court to ensure so far as it can that children survive to attain that age.
To take it a stage further, if the child's welfare is threatened by a serious and imminent risk that the child will suffer grave and irreversible mental or physical harm, then once again the court when called upon has a duty to intervene. It makes no difference whether the risk arises from the action or inaction of others, or from the action or inaction of the child. Due weight must be given to the child's wishes, but the court is not bound by them."
"No question of "Gillick competence" in common law terms arises. The 16- or 17-year-old is conclusively presumed to be "Gillick competent" or, alternatively, the test of "Gillick competence" is bypassed and has no relevance."
I refer, secondly, to what he said in In re R (A Minor) (Wardship: Consent to Treatment)  Fam 11 (page 24):
"consent by a child between the ages of 16 and 18 is no more effective than that of an adult if, due to mental disability, the child is incapable of consenting."
i) In one sense (what they call "legal capacity") the question is one of personal status, irrespective of any impairment or disturbance of mental functioning. Thus, subject only to statute, a child, as such, lacks capacity at common law by reason of being a child and thus not having reached its majority what was once referred to as incapacity by reason of non-age. Once upon a time the same applied in many ways to a married woman (feme covert) who, by reason of her coverture, was treated as lacking the capacity she had had as a spinster and only recovered as a widow or on divorce (feme sole).
ii) In the other sense (what might be called "mental capacity") the question has nothing to do with personal status; it is all to do with impairment or disturbance of mental functioning I use the phrase at this point descriptively, not definitively. As we will see below, the test of mental capacity was a creation of the common law; it is now encapsulated in sections 2(1) and 3(1) of the Mental Capacity Act 2005.
For the purposes of section 8 we are concerned only with legal capacity; the effect of the statute, in relation to its specific subject matter (medical treatment) is, as it were, to reduce the age of majority from 18 to 16 that, and no more. Section 8 is not concerned with and does not operate so as to deem the child to have mental capacity.
"In respect of a young person aged 16 or over, the legal position is different. There is a presumption of capacity under section 8 of the Family Law Reform Act 1969. As is explained in [in In re W (A Minor) (Medical Treatment: Courts Jurisdiction)  Fam 64], that does not mean that a court cannot protect the child under its inherent jurisdiction if it considers the treatment not to be in the child's best interests."
Moreover, as we shall see, the Donaldson analysis is, in effect, replicated in the scheme under the Mental Capacity Act 2005.
"a mere passing remark, or a statement or assumption on some matter that has not been argued, is one thing; a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter."
"Argued law is tough law. This is as true today as it was in 1409 Today, as of old, by good disputing shall the law be well known."
Having gone through what I should like to think was the purifying ordeal, what emerged from the assay in the Court of Appeal in In re W (A Minor) (Medical Treatment: Courts Jurisdiction)  Fam 64 was surely the tough law of which Megarry J spoke.
"A person must be assumed to have capacity unless it is established that he lacks capacity."
The word "person" is not defined in the Act and therefore might be thought at first blush to apply to any person of any age, and therefore to any child, however young. But section 1(1) provides that this principle applies "for the purposes of this Act", so to understand section 1(2) one has to turn to other parts of the Act to see what those "purposes" are.
"[t]here would be little point in our recommending that an anticipatory refusal of treatment can be made by persons under the age of eighteen since it is now settled if controversial law that the court in its exercise of its statutory and/or inherent jurisdiction (and possibly also any person who has parental responsibility) may overrule the refusal of a minor, competent or not, to accept medical treatment."
This is plainly a reference to the learning in In re R (A Minor) (Wardship: Consent to Treatment)  Fam 11 and in In re W (A Minor) (Medical Treatment: Courts Jurisdiction)  Fam 64. The Commission gave similar reasons (para 7.20) in relation to what would become lasting powers of attorney.
"For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain."
Section 3(1) provides as follows:
"For the purposes of section 2, a person is unable to make a decision for himself if he is unable
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means)."
i) In relation to children under the age of 16, (a) the sole question is whether the child is Gillick competent to make the decision in question and (b) the concept of Gillick competence has to do the dual work of addressing the child's decision within the context of both the child's developmental trajectory and any temporary impairment from which the child may be suffering. As they express it, "In application of that test, those involved will have to consider both where the point is in the child's developmental trajectory (as impacted, if relevant, by any permanent cognitive impairments) and any temporary factors that may be impacting upon their decision-making ability in relation to the decision in question (for instance the impact of a temporary mental health crisis or an accident)."
ii) In relation to children 16 or over, it is not clear whether and how the concept of Gillick competence differs from that of capacity under the Act. They invite me to consider whether the demands of the common law as set down in Gillick and the demands of the statutory provisions of the 2005 Act might not be reconciled by an approach in relation to medical treatment in which the test is two-fold: (a) does the young person have the 2005 Act capacity to make the decision to accept or refuse the treatment in question, the presumption being that they do so; and (b) if so, does he also have the competence to make the decision, taking into account the nature of the decision in the context of their experience of such decision-making. They commend this approach on the basis that it enables "the concepts of competence and capacity to be doing separate, complementary, work after the age of 16."
"there is no relevant distinction between the test as formulated in Re MB and the test set out in section 3(1) of the Act, and the one merely encapsulates in the language of the Parliamentary draftsmen the principles hitherto expounded by the judges in the other."
"In [In re S] Cobb J considered the competence of a mother under the age of 16 to consent to her baby being placed for adoption. Cobb J held that it was appropriate and helpful in determining Gillick competence to read across and borrow from the relevant concepts and language in the Mental Capacity Act 2005 but cognisant of some fundamental differences, in particular that the assumption of capacity in section 1(2) of that Act did not apply and there was no requirement for any diagnostic characteristic as there is in section 2(1) of the Mental Capacity Act 2005."
Although nothing turns on the point for present purposes, I myself would respectfully disagree with this approach. Its premise is that Gillick competence is in some way related or even analogous to capacity in the sense in which the expression is used in the 2005 Act. It is not; the two are, as I have said, both historically and conceptually quite distinct.
"If as the Official Solicitor submits section 5 MCA 2005 provides a complete framework for the delivery of care and treatment to those aged 16 above lacking capacity, then he submits that, by operation of conventional principles, it should be seen as ousting the place of the common law The Official Solicitor submits that the same analysis applies equally to the (common law) position in relation to those aged 16 and 17 with impaired capacity."
That submission received no support and was in fact rejected in an important passage in the judgment of Lady Black JSC (para 71):
"I cannot accept the Official Solicitor's case that the 2005 Act constitutes a complete decision-making framework for the care and treatment of those aged 16 and above who lack capacity, not least because there is an obvious overlap between the reach of the Children Act 1989 and that of the 2005 Act, and I can find nothing in the 2005 Act that could be said to indicate a general rule to the effect that, where it applies, it does so to the exclusion of other common law and statutory provisions"
"nothing that I have said is intended to cast any doubt on the powers of the courts, recognised in the early cases to which I have referred, and still available today in both the parens patriae jurisdiction and under statute, notably the Children Act 1989, to make orders in the best interests of children up to the age of majority, with due regard to their wishes and those of their parents, but not dictated by them."
"(a) to understand the information that is relevant to making a decision to consent or not consent to the medical examination or the medical or dental treatment; or (b) to appreciate the reasonably foreseeable consequences of making a decision to consent or not consent to the medical examination or the medical or dental treatment."
"46 The latitude accorded to adults at common law to decide their own medical treatment had historically narrowed dramatically when applied to children. However, the common law has more recently abandoned the assumption that all minors lack decisional capacity and replaced it with a general recognition that children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding. This is known as the common law 'mature minor' doctrine The doctrine addresses the concern that young people should not automatically be deprived of the right to make decisions affecting their medical treatment. It provides instead that the right to make those decisions varies in accordance with the young person's level of maturity, with the degree to which maturity is scrutinised intensifying in accordance with the severity of the potential consequences of the treatment or of its refusal.
47 AC [for whom, I note, Mr Brady appeared he is qualified in several jurisdictions] argued that the mature minor doctrine means that mature children are, at common law, entitled to make all decisions related to their medical care, including the decision to refuse life-saving medical treatment. This literal interpretation of the 'mature minor' doctrine, with respect, miscasts its actual development and application, both in Canada and abroad. It also seriously underrepresents the limits on the ability to accurately assess maturity in any given child."
"56 [they] currently represent the law for adolescents' medical decision-making capacity in the United Kingdom. What is important to note is that none of these cases asserted that a 'mature minor' should be treated as an adult for all decisional treatment purposes. The Court of Appeal confirmed in Re R and Re W that a child's 'Gillick competence' or 'mature minor' status at common law will not necessarily prevent the court from overriding that child's wishes in situations where the child's life is threatened. In such cases, the court may exercise its parens patriae jurisdiction to authorise treatment based on an assessment of what would be most conducive to the child's welfare, with the child's views carrying increasing weight in the analysis as his or her maturity increases.
57 To date, no court in the United Kingdom has allowed a child under 16 to refuse medical treatment that was likely to preserve the child's prospects of a normal and healthy future."
"58 As in the United Kingdom, where deferring to the wishes of a child under 16 was likely to jeopardise his or her potential for a healthy future, treatment has always been ordered by courts in Canada over the refusal of the adolescent and his or her parents ...
62 Where a child's decisional capacity to refuse treatment has been upheld, on the other hand, it has been because the court has accepted that the mature child's wishes have been consistent with his or her best interests."
"As in the UK and Canada, no state court has gone so far as to suggest that the 'mature minor' doctrine effectively 'reclassifies' mature adolescents as adults for medical treatment purposes."
In relation to Australia she made a similar observation (para 68):
"And, as elsewhere, Australian courts have determined that their authority to make orders in respect of children's welfare, including medical treatment, is not limited by the decisions of a 'Gillick-competent' minor The treatment decisions of even mature children can therefore be overridden by a court exercising its parens patriae jurisdiction or the Family Court's almost identical statutory jurisdiction."
"What is clear from the above survey of Canadian and international jurisprudence is that while courts have readily embraced the concept of granting adolescents a degree of autonomy that is reflective of their evolving maturity, they have generally not seen the 'mature minor' doctrine as dictating guaranteed outcomes, particularly where the consequences for the young person are catastrophic."
" Under the Child and Family Services Act the distinction between promoting autonomy and protecting welfare is presumed to collapse at age 16, subject to evidence to the contrary. But whether a child is under or over 16, the weight that is accorded to his or her views under s 25 of the Act will ultimately correspond to a court's conclusions about the extent to which the child is capable of making decisions in his or her own best interests." (emphasis added)
"In the vast majority of situations where the medical treatment of a minor is at issue, his or her life or health will not be gravely endangered by the outcome of any particular treatment decision. That is why courts have determined that medical practitioners should generally be free to rely on the instructions of a young person who seems to demonstrate sufficient maturity to direct the course of his or her medical care."
But, she went on (paras 86-87):
"86 Where a young person comes before the court under s 25 of the Child and Family Services Act, on the other hand, it means that child protective services have concluded that medical treatment is necessary to protect his or her life or health and either the child or the child's parents have refused to consent. In this very limited class of cases, it is the ineffability inherent in the concept of 'maturity' that justifies the state's retaining an overarching power to determine whether allowing the child to exercise his or her autonomy in a given situation actually accords with his or her best interests. The degree of scrutiny will inevitably be most intense in cases where a treatment decision is likely to seriously endanger a child's life or health.
87 The more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight that will be given to his or her views when a court is exercising its discretion under s 25(8). In some cases, courts will inevitably be so convinced of a child's maturity that the principles of welfare and autonomy will collapse altogether and the child's wishes will become the controlling factor. If, after a careful and sophisticated analysis of the young person's ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent's views ought to be respected. Such an approach clarifies that in the context of medical treatment, young people under 16 should be permitted to attempt to demonstrate that their views about a particular medical treatment decision reflect a sufficient degree of independence of thought and maturity." (emphases added)
"88 it is, by definition, in a child's best interests to respect and promote his or her autonomy to the extent that his or her maturity dictates.
92 the quality of decision-making about a child is enhanced by input from that child. The extent to which that input affects the 'best interests' assessment is as variable as the child's circumstances, but one thing that can be said with certainty is that the input becomes increasingly determinative as the child matures. This is true not only when considering the child's best interests in the placement context, but also when deciding whether to accede to a child's wishes in medical treatment situations.
95 In those most serious of cases, where a refusal of treatment carries a significant risk of death or permanent physical or mental impairment, a careful and comprehensive evaluation of the maturity of the adolescent will necessarily have to be undertaken to determine whether his or her decision is a genuinely independent one, reflecting a real understanding and appreciation of the decision and its potential consequences." (emphases added)
" a problem arises when a child's interest in exercising his or her autonomy conflicts with society's legitimate interest in protecting him or her from harm."
She reconciled them as follows (paras 107-108, 111):
"107 Given the significance we attach to bodily integrity, it would be arbitrary to assume that no one under the age of 16 has capacity to make medical treatment decisions. It is not, however, arbitrary to give them the opportunity to prove that they have sufficient maturity to do so.
108 Interpreting the best interests standard so that a young person is afforded a degree of bodily autonomy and integrity commensurate with his or her maturity navigates the tension between an adolescent's increasing entitlement to autonomy as he or she matures and society's interest in ensuring that young people who are vulnerable are protected from harm. This brings the 'best interests' standard in s 25(8) in line with the evolution of the common law and with international principles, and therefore strikes what seems to me to be an appropriate balance between achieving the legislative protective goal while at the same time respecting the right of mature adolescents to participate meaningfully in decisions relating to their medical treatment. The balance is thus achieved between autonomy and protection, and the provisions are, accordingly, not arbitrary.
111 But whether a child is under or over 16, the weight that is accorded to his or her views under s 25 of the Act will ultimately correspond to a court's conclusions about the extent to which the child is capable of making decisions in his or her own best interests. By permitting adolescents under 16 to lead evidence of sufficient maturity to determine their medical choices, their ability to make treatment decisions is ultimately calibrated in accordance with maturity, not age, and no disadvantaging prejudice or stereotype based on age can be said to be engaged. There is therefore no violation of s 15." (emphases added)
Abella J concluded her analysis as follows (paras 114-116):
"114 the 'best interests' test referred to in s 25(8) of the Act, properly interpreted, provides that a young person is entitled to a degree of decisional autonomy commensurate with his or her maturity.
115 The result of this interpretation of s 25(8) is that adolescents under 16 will have the right to demonstrate mature medical decisional capacity. This protects both the integrity of the statute and of the adolescent. It is also an interpretation that precludes a dissonance between the statutory provisions and the Charter, since it enables adolescents to participate meaningfully in medical treatment decisions in accordance with their maturity, creating a sliding scale of decision-making autonomy. This, in my view, reflects a proportionate response to the goal of protecting vulnerable young people from harm, while respecting the individuality and autonomy of those who are sufficiently mature to make a particular treatment decision.
116 If ss 25(8) and 25(9) did in fact grant courts an unfettered discretion to make decisions on behalf of all children under 16, despite their actual capacities, while at the same time presuming that children 16 and over were competent to veto treatment they did not want, I would likely agree that the legislative scheme was arbitrary and discriminatory. A rigid statutory distinction that completely ignored the actual decision-making capabilities of children under a certain age would fail to reflect the realities of childhood and child development. However, this is not the effect of ss 25(8) and 25(9). As the foregoing analysis demonstrates, a child's maturity and corresponding interest in self-determination will factor significantly into any determination of his or her 'best interests' under s 25(8) of the Act, with the child's views becoming increasingly determinative as his or her maturity increases." (emphases added)
"the majority's interpretation of the CFSA does not render rebuttable the presumption that persons under 16 lack the capacity to refuse medical treatment. Under their interpretation of the CFSA, even if a minor under 16 demonstrates his or her capacity, he or she is still not treated in the same manner as a minor who is 16 and over. His or her demonstrated capacity remains one consideration among others (however much its weight increases in correspondence with the maturity level and the nature of the treatment decision to be made) and is in no way determinative. AC's position throughout this case has been that once it is established that she is an individual with 'capacity' the applications judge ought to cede to her the power to decide to have or not to have the blood transfusion. In seeking to set aside the 16 April 2006 order, AC asks for either a constitutional exemption or the nullification of ss 25(8) and 25(9) of the CFSA. The sliding scale of weight the majority is prepared to give to her views is not responsive to her argument. Her point is: who decides?"
It is hard to imagine that the majority would have let this pass without comment had they thought it misrepresented their position.
"This Court has already found that BP is a mature minor, of high intelligence, on the cusp of adulthood. Applying the principles in [AC], I find that his wishes should be accorded virtually the same respect and deference extended to adults." (emphasis added)
He went on (paras 86-87):
"86 The right to consent to medical treatment extends to children, with some caveats. In AC v Manitoba at para 46, the Supreme Court described the contours of those limits [quoting the passage I have already set out].
87 I conclude that there is a high bar to overcome before a Court could find that a mature minor's refusal of counselling can be overcome "
"45 It is my opinion that the best interests standard should have application, where the treatment decision is related to the preserving of life of a person who is not legislatively recognized as an "adult". I am of the opinion that the best interests standard must be applied in line with the level of maturity had by the individual involved as well as the independence of their judgment. My reason for concluding that this is a proper consideration is based upon the rationale used by the Supreme Court of Canada's majority decision in [AC].
46 In that case, Abella J, for the majority of the court, found that applicable child protection legislation in place in Manitoba that stipulated that a court could authorize medical treatment for a person under 16 years of age considered in that person's best interests, such a consideration was not an unconstitutional one. The caveat to this is that the best interests standard must be applied in a manner that takes into increasingly serious account the young person's views the greater the child's level of maturity. This is an analysis that is best analogized with a "sliding scale" type of approach. While this reasoning was applied with regard to a person under of the age of 16, I find that the same reasoning is applicable to those over the age of 16 up to the time the person reaches the age of majority and is recognized by law as an adult."
He went on (para 51):
"In [AC], notwithstanding the presumed competency of the individual involved, the majority of the Court allowed for a sliding scale application of the best interests standard. A person who is aged 16 and has not yet reached the age of majority is in no different a position than a person found to a "mature minor" under 16 years of age in my view. Neither have attained the age of majority notwithstanding a recognition of competency either by statute or common law. As the approach to be applied takes into account differing levels of maturity, I see no issue in accepting that the best interests standard is to be applied for individuals who, at law, are not recognized as being an "adult". The Court's authority to protect the vulnerable using its parens patriae jurisdiction accords with this approach for this class of persons."
"The Court reiterates that a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The Convention organs must nevertheless satisfy themselves that the medical necessity has been convincingly shown to exist."
"Q going back to when you were transfused in June 2020, could you explain how that made you feel? What was your reaction, your feeling, at the time of the transfusion and afterwards?
A Well, when I was getting transfused and I saw the blood going through the canula in to my body, I felt, like, really disgusted and, sort of, horrified with myself. Just because I did I didn't feel right with having somebody else's blood going inside me and afterwards, I remember feeling really low in mood. I was really very down and I felt very miserable
Q you were transfused at an earlier time, in  how did you feel at that time when you were transfused?
A it was very difficult time that time and it was [last-minute] as well. So, the transfusion happened quite quickly I felt angry with the doctors and I felt I wasn't being listened to
Q With the evidence of Dr C in mind, and if you were to receive an additional transfusion, a third transfusion, how do you anticipate you would feel?
A Well, I would feel frustrated and even more angry because, you know, it would the third time that it had happened and, like I said, you know, despite fighting so hard for it not to happen, I would feel that nobody really, you know, cares about what I think or what I feel. So, I would be angry. I would be frustrated And I would I feel exhausted and, you know, you know, just miserable and really, really, sad."
"On the face of it, article 8 offers considerable protection to anyone objecting to treatment, underpinned as it is by notions of personal autonomy. But whilst such protection is available to an adult, it might be arguable that an infringement of a Gillick competent teenager's rights under article 8(1) (by forcing treatment on him) could be justified as being necessary to safeguard his life, as long as it is proportionate to the risks involved in the patient not receiving the treatment. It appears therefore that as long as the treatment is medically perfectly orthodox and life-saving, a domestic court might authorise treatment against the teenager's wishes, without necessarily falling foul of articles 3 or 8 of the Convention."
"[a]rguably, the interests of minors are served by overriding their immediate decision where a failure to do so would prevent them from developing into functionally autonomous agents. Thus there are strong arguments for applying future-orientated versions of autonomy in cases where the decision would result in death or serious injury."
"It must be the aim of the Court to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult (emphasis added by Abella J)."
"It is quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated adults) has power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit. It is equally clear that the court's powers extend to authorising that person's detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there"
"the lawful detention of persons of unsound mind "
"119 Article 5 is not a qualified right and there is no scope for holding that the denial of a person's liberty engages article 5 but does not amount to a violation because it serves a legitimate aim and is proportionate and necessary in a democratic society. Exceptionally there are situations where the Strasbourg court finds that in effect those tests were met but it can only do so by holding that there is no deprivation of liberty for article 5 purposes. Thus, in Austin v United Kingdom 35 EHRR 14, the complainants were demonstrators who had been "kettled" by the police, that is, kept against their will within a police cordon. The Strasbourg court held that there was no violation because the need for the police to maintain order in this situation meant the denial of liberty was not a deprivation of liberty for article 5 purposes. So, too, in [Nielsen v Denmark (1988) 11 EHRR 175], the Strasbourg court had held that there was no deprivation of liberty for article 5 purposes.
120 It follows that there will be cases where a person loses their liberty but the acid test in Cheshire West, as Lady Hale describes it, does not apply. That conclusion is shown by observing that D's case is about living arrangements. It is not about a child, or anyone else, needing life-saving emergency medical treatment. For the reasons which the Court of Appeal (McFarlane LJ, Sir Ross Cranston and myself) gave in R (Ferreira) v Inner South London Senior Coroner  QB 487, the situation where a person is taken into (in that case) an intensive care unit for the purpose of life-saving treatment and is unable to give their consent to their consequent loss of liberty, does not result in a deprivation of liberty for article 5 purposes so long as the loss of liberty is due to the need to provide care for them on an urgent basis because of their serious medical condition, is necessary and unavoidable, and results from circumstances beyond the state's control (para 89)."
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"[A] person's body concerns the most intimate aspect of private life. Thus, a compulsory medical intervention, even if it is of minor importance, constitutes an interference with this right."
" even assuming that there would be a difference in treatment between minors requiring containment and education and adults with the same requirements, any such difference in treatment would not be discriminatory stemming as it does from the protective regime which is applied through the courts to minors in the applicant's position. In the Court's view, there is accordingly an objective and reasonable justification for any such difference of treatment. In so far as he compares his situation to that of other minors, the Court considers that no separate issue arises given that it raises the same issue which lies at the heart of the Article 5 complaint in respect of which the Court has found a violation of the Convention." (emphasis added)
"For all those reasons it follows that first the 2004 Guidance does not engage article 8(1), but even if it does, any infringement of the parent's article 8(1) rights can be justified under article 8(2) in the light of the matters to which I have referred. Thus the principles in Gillick continue to be valid and applicable being unaffected by article 8."
The sweeping statement in the second sentence has, it seems to me, to be read in the context of the specific reference in the first sentence to the parent's Article 8 rights.
"15 In this case, balancing the competing factors, I have no hesitation in concluding that the balance comes down firmly in favour of overriding P's wishes. I recognise that this is not to be taken lightly. The wishes of a young person aged seventeen and a half are important. They are, of course, entitled to be taken into account as part of her Article 8 rights under ECHR. On the other hand, those rights are not absolute. Here, they are outweighed by her rights under Article 2 everyone's right to life shall be protected by law. The court is under a positive or operational duty arising from Article 2 to take preventative measures to protect an individual whose life is at risk: Osman v UK (1998) 29 EHRR 245: [Rabone and another v Pennine Care NHS Trust (INQUEST and others intervening)  UKSC 2,  2 AC 72; A NHS Trust v Dr A  EWHC 2273 (Fam).
16 In those circumstances, this court is under a heavy duty to take what steps it can to protect P's life which is manifestly in danger tonight. Accordingly, I have made an order including a declaration that it is lawful and in P's best interests for the medical practitioners having responsibility for her care and treatment to treat her for the effects of her overdose notwithstanding the fact that she is refusing treatment."
"The law should be accessible to the persons concerned and formulated with sufficient precision to enable them if need be, with appropriate advice to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail For domestic law to meet these requirements, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise."
Many attempts have been made to demonstrate that purely common law rules, to be found only in a mass of case-law, fall foul of this principle but I am not aware of any that have succeeded, nor have similar attacks on the statutory, if largely undefined and unarticulated, rule that the welfare of a child is the court's paramount consideration. I reject the proposition that the law as set out in In re R (A Minor) (Wardship: Consent to Treatment)  Fam 11 and In re W (A Minor) (Medical Treatment: Courts Jurisdiction)  Fam 64 offends this salutary principle.
"135 The very essence of the Convention is respect for human dignity and human freedom and the notions of self-determination and personal autonomy are important principles underlying the interpretation of its guarantees. The ability to conduct one's life in a manner of one's own choosing includes the opportunity to pursue activities perceived to be of a physically harmful or dangerous nature for the individual concerned. In the sphere of medical assistance, even where the refusal to accept a particular treatment might lead to a fatal outcome, the imposition of medical treatment without the consent of a mentally competent adult patient would interfere with his or her right to physical integrity and impinge on the rights protected under art.8 of the Convention.
136 The freedom to accept or refuse specific medical treatment, or to select an alternative form of treatment, is vital to the principles of self-determination and personal autonomy. A competent adult patient is free to decide, for instance, whether or not to undergo surgery or treatment or, by the same token, to have a blood transfusion. However, for this freedom to be meaningful, patients must have the right to make choices that accord with their own views and values, regardless of how irrational, unwise or imprudent such choices may appear to others. Many established jurisdictions have examined the cases of Jehovah's Witnesses who had refused a blood transfusion and found that, although the public interest in preserving the life or health of a patient was undoubtedly legitimate and very strong, it had to yield to the patient's stronger interest in directing the course of his or her own life. It was emphasised that free choice and self-determination were themselves fundamental constituents of life and that, absent any indication of the need to protect third parties for example, mandatory vaccination during an epidemic, the state must abstain from interfering with the individual freedom of choice in the sphere of health care, for such interference can only lessen and not enhance the value of life."
" the parents' decision to refuse treatment of a child may be reversed by means of judicial intervention. It follows that Russian law protects the individual's freedom of choice in respect to their health care decisions as long as the patient is a competent adult and there is no danger to innocent third parties. These provisions were prima facie applicable in the instant case because all the refusals of blood transfusions which had been described in the domestic judgments had been formulated by adult Jehovah's Witnesses having capacity to make medical decisions for themselves. In the only case involving a minor, the hospital did not apply for judicial authorisation of a blood transfusion, although such a possibility was explicitly provided for in law, which indicates that authorisation was considered unnecessary for medical or other reasons."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"14 Discrimination means a failure to treat like cases alike. There is obviously no discrimination when the cases are relevantly different. Indeed, it may be a breach of article 14 not to recognise the difference: see Thlimmenos v Greece (2001) 31 EHRR 411. There is discrimination only if the cases are not sufficiently different to justify the difference in treatment. The Strasbourg court sometimes expresses this by saying that the two cases must be in an 'analogous situation': see Van der Mussele v Belgium (1983) 6 EHRR 163, 179180, para 46.
15 Whether cases are sufficiently different is partly a matter of values and partly a question of rationality."
" in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background."
"the proceedings under the inherent jurisdiction have in my view an objective and reasonable justification and pursue a legitimate aim, namely the care and treatment of desperately ill children."
"110 Age distinctions have frequently been upheld by this court They are currently employed to determine when a person can marry, vote, drive, consent to sexual intercourse and sell property. As noted by McLachlin CJ in Gosselin  4 SCR 429 at , it must be recognised that 'age-based legislative distinctions are a common and necessary way of ordering our society'. In the context of s 15 of the Charter, McLachlin CJ has commented that while 'all age-based distinctions have an element of this literal kind of "arbitrariness"', this alone does not invalidate them '[p]rovided that the age chosen is reasonably related to the legislative goal' (Gosselin  4 SCR 429 at ).
111 Age demarcations for allocating presumptions were defended by Jessica W Berg et al in Informed Consent: Legal Theory and Clinical Practice (2nd edn, 2001), p 97:
'Most authors in this area agree that age cut-offs should not be used as automatic determinants of de facto capacity for any type of decision but may function as an indicator to shift presumptions. Thus, individuals below the age of consent are presumed to lack capacity unless shown otherwise, and those above the age of consent are presumed to have capacity until shown otherwise.' (Our emphasis.)
Under the Child and Family Services Act the distinction between promoting autonomy and protecting welfare is presumed to collapse at age 16, subject to evidence to the contrary. But whether a child is under or over 16, the weight that is accorded to his or her views under s 25 of the Act will ultimately correspond to a court's conclusions about the extent to which the child is capable of making decisions in his or her own best interests. By permitting adolescents under 16 to lead evidence of sufficient maturity to determine their medical choices, their ability to make treatment decisions is ultimately calibrated in accordance with maturity, not age, and no disadvantaging prejudice or stereotype based on age can be said to be engaged. There is therefore no violation of s 15."
"The concept of welfare is, no doubt, the same today as it was in 1925, but conceptions of that concept, to adopt the terminology of Professor Ronald Dworkin, or the content of the concept, to adopt the corresponding terminology of Lord Hoffmann in Birmingham City Council v Oakley  1 AC 617, 631, have changed and continue to change. A child's welfare is to be judged today by the standards of reasonable men and women in 2017 not by the standards of their grandparents in 1925 or their parents in 1969 (when the House of Lords decided J and Another v C and Others  AC 668; see in particular the speech of Lord Upjohn, 722-723) and having regard to the ever changing nature of our world, in particular, changes in social attitudes: see Re G (Education: Religious Upbringing)  EWCA Civ 1233,  1 FLR 677, para 33."
"I express no view on the question whether a young person, whether over the age of 16 or under that age if "Gillick competent," should have complete autonomy in the field of medical treatment. That is a matter of social policy with which Parliament can deal by appropriate legislation if it wishes to do so."
i) Determining whether or not a particular treatment is medically required is highly fact specific. It cannot be subject to speculation or generalisation, certainly not up to two years in advance. This, he suggests, is particularly true in the case of blood transfusions where, he submits, there are wide, but well-documented, variations in clinical practice. He relies for this purpose on the World Health Organization's The clinical use of blood in general medicine, obstetrics, paediatrics, surgery and anaesthesia, trauma and burns, Geneva, WHO, 2009, available at: http://www.who.int/bloodsafety/clinical_use/en/ and the European Commission's Building national programmes of Patient Blood Management (PBM) in the EUA Guide for Health Authorities, Brussels, EU, 2017, available at: https://ec.europa.eu/health/blood_tissues_organs/publications_en. I do not follow him into the detail, though the general point is, I think, well made.
ii) To grant a two-year "rolling order", to be implemented based on the say-so of whomever happens to be the treating clinician and whatever their particular transfusion practice, is therefore inappropriate. It runs the risk of privileging "medical paternalism" over judicial protection. I can see the force of this point.
iii) In the kind of case with which I am concerned, there is the risk of discrimination and religious stereotyping, based on the erroneous assumption that blood transfusions are always necessary whenever recommended by a clinician and that a patient who is a Jehovah's Witnesses is always wrong to refuse such a procedure. He cites M(J) v Alberta (Director of Child Welfare) 2004 ABQB 512, para 43, where Kent J said:
" the treating physician's clinical assessment must always be a significant consideration. However, the [State] and the Court must be careful not to presume that the doctor has always recommended the only acceptable treatment and that Jehovah's Witness parents are always wrong in denying their consent for treatment by way of blood products. Such a paternalistic attitude impairs the parents' rights "
iv) X and her counsel were given very little notice of the urgent hearing on 29 October 2020, did not have access to the hospital records and had no opportunity to obtain expert evidence. Although counsel did his best at the hearing to probe Dr C's various assertions, X has not yet had the opportunity to test the medical evidence rigorously which must be the pre-requisite if there is to be a rolling order for a period stretching over two years.
"a point of law of general public importance is involved and that that point of law either
(a) relates wholly or mainly to the construction of an enactment or of a statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings, or
(b) is one in respect of which the judge is bound by a decision of the Court of Appeal or of the Supreme Court in previous proceedings, and was fully considered in the judgments given by the Court of Appeal or the Supreme Court (as the case may be) in those previous proceedings."
The conditions in section 12(3A) are that:
"a point of law of general public importance is involved in the decision and that
(a) the proceedings entail a decision relating to a matter of national importance or consideration of such a matter,
(b) the result of the proceedings is so significant (whether considered on its own or together with other proceedings or likely proceedings) that, in the opinion of the judge, a hearing by the Supreme Court is justified, or
(c) the judge is satisfied that the benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the Court of Appeal."
"Where by virtue of any enactment, apart from the provisions of this Part of this Act, no appeal would lie to the Court of Appeal from the decision of the judge except with the leave of the judge or of the Court of Appeal, no certificate shall be granted under section 12 of this Act in respect of that decision unless it appears to the judge that apart from the provisions of this Part of this Act it would be a proper case for granting such leave."