[HOUSE OF LORDS]
GILLICK RESPONDENT AND WEST NORFOLK AND WISBECH AREA HEALTH AUTHORITY FIRST APPELLANTS AND DEPARTMENT OF HEALTH AND SOCIAL SECURITY SECOND APPELLANTS
|1984 Nov. 19, 20, 21, 22; |
1985 June 24, 25, 26, 27;
July 1, 2, 3, 4;
| Eveleigh , Fox and Parker L.JJ. Lord Fraser of Tullybelton , Lord Scarman , Lord Bridge of Harwich , Lord Brandon of Oakbrook and Lord Templeman |
The extent of a parent's rights and duties with respect to the medical treatment of a child
The criminal aspects
Appeal allowed with costs, and declarations granted accordingly.
Leave to appeal.
Solicitors: Ollard & Bentley, March; Treasury Solicitor.
[Reported by PAUL MAGRATH, ESQ., Barrister-at-Law.]
APPEAL from the Court of Appeal.
This was an appeal by the Department of Health and Social Security from a decision dated 20 December 1985 of the Court of Appeal, ante, p. 118A, (Eveleigh, Fox and Parker L.JJ.) allowing an appeal by the plaintiff, Victoria Gillick, from a judgment of Woolf J.  Q.B. 581 who on 26 July 1983 dismissed the plaintiff's action against the defendants, the Norfolk Area Health Authority (subsequently amended to the West Norfolk and Wisbech Area Health Authority), and the Department of Health and Social Security, claiming (i) a declaration against both defendants that on its true construction Health Notice (H.N. (80) 46), had no authority in law and gave advice which was unlawful and wrong, and which adversely affected or might adversely affect the welfare of the plaintiff's children, and/or the rights of the plaintiff as parent and custodian of the children, and/or the ability of the plaintiff properly and effectively to discharge her duties as such parent and custodian; and (ii) a declaration against the area health authority that no doctor or other professional person employed by them either in the Family Planning Service or otherwise might give any contraceptive and/or abortion advice and/or treatment to any child of the plaintiff below the age of 16 without the prior knowledge and consent of the child's parent or guardian. The Court of Appeal granted the defendants leave to appeal.
The facts are stated in the opinion of Lord Fraser of Tullybelton.
John Laws and Ian Kennedy for the Department of Health and Social Security. This case must be decided on judicial review principles, namely whether the Secretary of State was acting ultra vires any statutory provision. It is said by the plaintiff that in issuing the memorandum of guidance the Secretary of State misunderstood some principle of law material to the guidance, or that the guidance enshrines an erroneous view of the law which is material to the subject matter. Those propositions are put in three ways: (1) that the guidance involves a denial of a legal right which parents possess in relation to their children; (2) that the guidance, if carried into effect by doctors, would sometimes involve the commission by doctors of the criminal offence of aiding and abetting unlawful sexual intercourse; and (3) that the guidance involves the commission of criminal offences and torts by doctors and other professional people, namely assault on the child, because the child cannot in law consent to the touching involved in medical examination which would be necessary in following the guidance.
On the question of parental rights, it is essential to analyse the legal right contended for. The contention is that every parent is in English law entitled to be informed whenever a doctor or other professional person proposes to give any contraceptive advice or treatment to his or her daughter aged under 16 years, in order that the parent might seek to dissuade or prevent the doctor from so acting. That right is said to admit of no exceptions save in the case of an “emergency” and is said to be an absolute right. If that right exists, it is a right which is incapable of being policed by the court and also, paradoxically, of being enforced, because it could not be looked at by the court except in the context of being denied.
The guidance deals only with unusual or exceptional cases and contemplates parents not being informed only in the “most unusual” or “exceptional” cases. If the plaintiff accepted that, she would not object to the guidance. But the plaintiff's contention is that even in exceptional and unusual cases parents have a right to know and a doctor cannot act without the parent's knowledge. That being the position, this case is not primarily about the family circumstances of the plaintiff herself: see Parker L.J., ante, p. 121A–C. On a proper analysis the exercise of the right to know cannot be modified, qualified or prohibited on the grounds that it would be contrary to the interests of the child.
The question whether it would be wise to inform the parents cannot be tested in court without the parents being informed. Any value in keeping the matter from the parents in an individual case would be lost even if the doctor felt that disclosure to the parents would be harmful to the child. To invoke the assistance of the courts would be to throw the baby out with the bath water.
The parental right to be informed does not apparently carry with it any means of its being enforced by the person entitled to the right. If the doctor does not inform the parents, clearly the parents could not get relief in advance because they would not have the knowledge with which to sue. After the event neither the parent nor the child would have a claim for damages. Therefore it is a right which is not enforceable in law and raises the question whether in fact there is such a right in law. It also denies to the doctor any measure of discretion in relation to a child under 16 years.
The Children Act 1975 made sweeping changes to the way in which courts dealt with children. Parker L.J. was incorrect in his analysis of that Act, ante, pp. 123G — 124H, and in particular it cannot be accepted that the Act gave parents the right to determine “the place at which and manner in which [the child's] time is spent.” There is a dwindling scale of parental rights from birth to the age of majority. The Act of 1975 suggests that parents' rights march with parents' duties.
In regard to the Education Act 1944, Parker L.J., ante, pp. 124H — 125C, was incorrect. Section 48(4) of the Act of 1944 does not have the effect stated by Parker L.J., ante p. 125C. Not only does section 48(4) manifestly not prohibit treatment to a child whose parent objects, but it also has an analogy to the guidance which is objected to in this appeal.
Parker L.J. was also incorrect in construing section 5(2) of the Mental Health Act 1959 which is now re-enacted in section 131(2) of the Mental Health Act 1983: see ante, p. 123E–G. Parker L.J. at p. 123D–E relied on the National Health Service (General Medical and Pharmaceutical Services) Regulations 1962 (S.I. 1962 No. 2248) which are now replaced by the Regulations of 1974 of the same name (S.I. 1974 No. 160). Those Regulations do not lend support to the contention that at common law a child under 16 years is deemed to be incapable of applying for the services of a doctor.
From section 5(1) ( b) of the National Health Service Act 1972 it is clear that contraception is now a medical matter and is no longer a social and moral issue only.
Section 1 of the Guardianship of Minors Act 1971 which enshrines the welfare principle makes the proposition that whenever a parental right is being asserted in proceedings in which a minor's right or custody is in question, that right will be denied if the minor's welfare so requires. It is clear that that principle is not confined to litigation between parents. The principle is illuminating on whether a right of the kind asserted by the plaintiff can be upheld. It cannot be a right which the court will never enforce. Therefore any asserted parental right only has existence so far as it has consonance with the child's welfare and one can never have a case where a parent can assert a right which is contrary to the child's welfare.
Parker L.J. departs, ante, p. 130E–F, from the effect of section 1 of the Act of 1971 when he says that the court will assist “to buttress and support the legal right” of the parent. That is what a court will not do, and a parent cannot insist on the enforcement of a right which is contrary to the welfare of the child. Parker L.J. explicitly recognises, ante p. 133C–F, that the enforcement of the right contended for by the plaintiff might lead in individual cases to tragic consequences.
There might be cases where parental rights should not be enforced because of real family breakdown and where there is danger to the child's physical and mental health. The law does not recognise a parental right which is inconsistent with the child's welfare.
The Abduction Act 1557 (4 & 5 Ph. & M.c.8) is an Act which was passed for the protection of the property of heiresses. It is apparent from the preamble to the Act that it was dealing with the position of heiresses who were sought to be taken in marriage by persons who were after their fortunes. That was made a criminal offence and a penalty was imposed. In Reg. v. Howes (1860) 3 E. & E. 332 Cockburn C.J. was dealing with the Act of 1557 when he supported the concept of parental rights and specified 16 as the age until which a child could not leave the parent. Parker L.J. relied on this case although it was an abduction case in which the question was whether or not a child could leave the custody of the parent and begin an independent life. The Act of 1557 was repealed and replaced by the Offences against the Person Act 1828 (9 Geo. 4,c.31) which does not so clearly reflect the protection of property as does the Act of 1557.
There are two possibilities in the present case. First that a doctor with a patient under 16 years has no discretion to act without the parent's consent, and second that the doctor can act in exceptional cases. The second of these possibilities is no more than that the medical profession has a duty and a discretion to act in the patient's best interests.
It is not necessary for the department to submit that a girl under 16 has the wisdom of an adult. It has merely to be shown that a girl of that age has the capacity to consent to medical treatment. There is no reason to suppose that every girl under 16 years is incompetent to decide whether to practise contraception. Capacity to consent is a question of fact in every case: see Reg. v. D.  A.C. 778; Reg. v. Howard  1 W.L.R. 13 and Reg. v. Harling  1 All E.R. 307. The concern in the end is about how a doctor is to perform his professional duty.
In re Agar-Ellis (1883) 24 Ch D 317 was a case in which the father prevented the mother from freely communicating with the daughter. The mother and the daughter applied to the court for free access, but the court decided that although it regretted the father's decision it still could not interfere with his rights based on the Victorian view of the father and child relationship. It is an archaic view which is quite out of line with 20th-century reasoning and its importance is confined to legal history. However, the Court of Appeal heavily relied on it: see ante, pp. 128B–C, 142G. The Court of Appeal followed an outdated trend of cases.
Hewer v. Bryant  1 Q.B. 357 shows that a parent's legal right over a child is a dwindling right until a child reaches majority. Parker L.J. has misinterpreted that case, ante, p. 130D–F.
J. v. C.  AC 668 is an important case in the context of parental rights and is high authority for the proposition that the law has not stood still in that field. It shows the contrast between the old view and the present one and asserts that the welfare of the infant is the paramount consideration, not only as between parents but also in disputes with strangers and as between strangers. The judgments of the Court of Appeal do not truly reflect the importance of this case: see ante, pp. 127C–D, 140C–E.
The court's purpose can never be to vindicate a parent's rights. If the court thinks that there is inherent harm to the welfare of the child in giving a doctor the discretion to decide on matters relating to the child, that would be relevant. The question is whether a doctor should have a discretion to act in the best interests of the child without having to resort to the court.
A doctor in assessing the consequences of a 15-year-old girl getting pregnant is assessing a clinical matter. If the doctor's clinical judgment could only be carried into effect if he got a court order, that might involve dangers to the child. It is better to have some. rather than no, discretion in the doctor.
The guidance does nothing to encourage the doctor to transgress any principle of law. It is dealing with professional people who have duties recognised by the law and high ethical standards, acting as experts. The need to have regard to the importance of family life is enshrined in the guidance.
In In re N. (Minors) (Parental Rights)  Fam. 40, 46, Ormrod J. does not mention a right to control children when dealing with parental rights, but this case is of limited assistance only.
Three further questions arise. (1) Does the law relating to the duties and powers of doctors demonstrate a scope or discretion for action by doctors such that the guidance is lawful because it merely describes such discretion? That question may perhaps be determinative of the appeal. (2) What separate considerations arise in relation to the second declaration as compared to the first? (3) What view should be taken of the attempt to invoke the law to strike down the guidance, having regard to the fact that it is apparently advice and not an executive act?
The statutes and cases looked at indicate the existence at some time or another of fathers' rights, but that has gone from our law altogether and there is no longer room for the suggestion that as a matter of law the father has more rights than the mother. The rights of parents give rise to the welfare principle, and no rights can prevail against it. All parents' rights are is the power to act for the welfare of the child. Thus where the question is as between the parent's duty and the doctor's duty, there is no conflict in law between those duties since they are duties to act in the best interests of the child.
The question of custody in abduction cases from the Act of 1557 of Philip and Mary onwards is different from the question of what parents might do while the child is in their custody. Therefore those cases are of no help in resolving the present appeal except that the policy remains that as a general rule children should be in the custody of their parents until they are 16 years.
The wider concept of custody, namely the custody that a parent has until a child reaches the age of majority, and the narrower concept of custody, limiting a parent's overall physical control over a child, was explained by Sachs L.J. in Hewer v. Bryant  1 Q.B. 357.
The question in this appeal has become whether a doctor faced with a girl under the age of 16 asking for, and in his opinion needing, contraceptive advice and treatment without her parents' consent, is required by law to refuse to give such advice and treatment in every case.
The cases on the age of discretion are of no assistance on the issue of the child's capacity to consent to medical examination which would otherwise be an assault. Therefore it would be necessary to look at the common law for guidance on the capacity to consent. Reg. v. D.  A.C. 778 is authority for the proposition that the capacity to consent is a question of fact in every case depending on the child's age and understanding. The view that every child under 16 is incapable of giving consent to medical treatment flies in the face of Reg. v. D. In the Court of Appeal Eveleigh and Fox L.JJ. did not refer to Reg. v. D. and it is unclear what Parker L.J. is saying about it. The criminal law has found that a child under 16 can be capable of consenting and Fox L.J. was incorrect in his conclusions, ante, p. 145A–E Reg. v. Hayes  1 W.L.R. 234, a case relating to the capacity of a child to give sworn evidence, shows that the law is flexible as to the age at which a child should give sworn evidence. It is a question of fact depending on the understanding of the child.
On the question whether a doctor in prescribing contraceptives to a girl under 16 years would be committing the crime of aiding and abetting unlawful sexual intercourse, the department adopts the reasoning of Woolf J. in his judgment at first instance in  Q.B. 581, 593–595.
A doctor must decide, in the light of his training and in the light of his knowledge of his patient, what information should be provided to the patient: see Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital  AC 871. That principle applies to the new factors of the present appeal and a doctor must have a discretion to conceal information from a third party, namely the parent, if it is in the interests of his patient. If a doctor has undertaken to give “treatment” that includes contraceptive treatment, and therefore he owes all the duties to his patient that are owed in the giving of treatment.
The guidance starts with the premise that doctors would be true to high professional and ethical standards. It was not intended to police bad doctors but to guide those who were doing their best to perform their duty. Any attempt to lay down a rule for doctors would involve defining “clinical judgment,” which could not be defined save by reference to individual cases. The guidance is dealing with an area in which examples are multifarious, and in attempting to lay down a rule their Lordships' House would not be performing a law making or law developing exercise, but would be categorising medical practice. It would therefore not be a rule of law. The question is how doctors are to carry out their duties, and that is a question which cannot be answered fully by reference to legal rules.
There are constraints recognised by the law on what a doctor might do, given that he must act in the best interests of his patients. None of those constraints amounts to a rule. The criminal law provides specific constraints in specific fields as to what a doctor was not allowed to do. A doctor has a duty to exercise due care and professional skill, and the law will enforce that duty. A doctor must also act in accordance with the ethics of his profession and he is liable to disciplinary proceedings with legal sanctions if he does not, with ultimate appeal to the Privy Council. Patients must have the capacity to consent to any treatment that he proposes, and that capacity must be in the sense defined in Reg. v. D.  A.C. 778. The absence of the capacity to consent would prevent the doctor from acting. There is also the constraint of the exceptional ease. If a doctor ignores family ties as set out in the guidance he would not be acting in accordance with it. A further constraint is the veil of ignorance. A doctor must have enough information to be convinced that he is right.
It is impossible to make rules as to how individually a doctor is to act. However, the existence of the constraints is a powerful factor against the making of rules.
It may be said that there is conflict in the present appeal between the parent and the doctor. But both parent and doctor have duties to a common end, namely the welfare of the child. The parent has a general duty and the doctor a specific one. If the doctor considers that the child should have contraceptives for health reasons, he would be acting within his sphere of competence and would be entitled to prescribe. That would be a rare case but it is a possibility. A doctor's duty is not only to treat people who are ill but also to promote the health of his patients. It could be said therefore that there is no rule of law which absolutely prohibits a doctor from acting to provide contraceptive advice or treatment to any girl under the age of 16 who asks for it and requests that her parents should not be told. A doctor's power to act in such a case is legally constrained by provisions of the criminal law, requirements of the doctor's duty and the requirement of the patient's capacity to consent. In carrying out his duty the doctor will act on the presumption that the patient is the person whose decision as to contraceptive treatment should prevail. That is a rebuttable presumption.
The proposition that responsible parents acting upon their responsibility must always have their wishes prevail is in fact to assert an irrebuttable presumption and is therefore wrong as a matter of application of a legal principle. That is qualified by the proposition that a doctor, if he is to act within the constraints identified, is unlikely to be able to act contrary to the presumption.
If the proposition is that there are some cases in which the doctor has no discretion at all, that must be looked at with care. Such cases are said to be cases where the parents are carrying out their responsibility to the child. How is the doctor to ascertain that a particular case is within the prohibited area? It requires him also to make some sort of value judgment about the parents even if they are parents who on the face of it live as a united family. There could be even within that prohibited area a whole range of cases which have to be looked at. The proposition would make no distinction between a girl who is already having sexual intercourse and another who is not.
Where the court is asked for relief by way of a declaration, if there is no evidence of a present or threatened situation which requires such a declaration, the court should not grant it. In the absence of any special evidence, it is not a right use of the court's power to seek a declaration.
There are two aspects to the reviewability of the guidance. First that it is incapable of being judicially reviewed because it contains advice only and contains no executive decision. Secondly, whether advice only can be reviewed. The subject of every judicial review is a decision which affects some other person: see Council of Civil Service Unions v. Minister for the Civil Service  AC 374. It is not possible to identify in the guidance any legal solecism. Therefore unless as an absolute rule a doctor has no discretion to act, the guidance is not unlawful.
It is difficult to find any true point of law in the guidance, and the House of Lords is being asked to legislate for the practice of the medical profession. The guidance itself makes clear that the area within which this case lies involves a whole myriad of possible situations. Therefore there are great dangers in attempting to lay down rules unless it is an absolute rule. The department's guidance is true to the legal position of parents and the legal position of doctors. The reconciliation between a doctor's duty and a parent's duty is that both owe a duty to the child.
Gerard Wright Q.C., David Poole Q.C. and Patrick Field for the plaintiff. Parents have the legal responsibility for the physical and moral care and upbringing of their children. Within the concept of parenthood is included those who are placed in loco parentis by the courts or by virtue of statutory powers. The law supports that responsibility by granting and enforcing a power or right of control which extends to all major decisions concerning the welfare of the child in question. In the case of the parents, the courts and only the courts or someone endowed with statutory powers may limit or intervene in the exercise of the parental power and responsibility. In the case of the person possessing statutory powers, only the courts, unless expressly excluded by statute, may intervene. Where the court is in loco parentis as in wardship, no one may lawfully intervene. The duration of that responsibility and power is (a) in wardship, the full period of wardship which may extend throughout minority and up to majority; (b) in statutory guardianship, the full period granted by the statute in question; and (c) in parenthood, up to what for 125 years the common law has recognised as the age of discretion, namely, in females the age of 16.
“Major decisions” extend to and include a decision as to contraceptive treatment. A doctor has no right or power or discretion to make his own independent decision as to contraceptive treatment whatever the wishes of the female child in question. His duty is to advise and assist the parent, or person in loco parentis, or the court, in carrying out that party's duty to care for the child in question. Should he discover on full and proper inquiry that the child in question is entirely free from parental control and that there is no one in loco parentis, his duty is to recognise the fact that the child is in moral danger and to report the matter to those best qualified to deal with such a situation, namely, the social services. The correspondence with the area health authority indicates an assertion by them of a right in its doctors and other servants and agents to ignore and invade the parental responsibility and control and is therefore unlawful and in breach of the legal right implied in that responsibility. Consequently the plaintiff is entitled to the second declaration. The area health authority based its attitude on its interpretation of the guidelines. The interpretation which has been contended for is that a doctor in his sole clinical judgment may in any case override and supersede the wishes of a parent and may provide contraceptive treatment irrespective of the parents' wishes. If and in so far as that is a correct or possible interpretation of the guidance, the advice it provides is contrary to law.
Before the National Health Service was set up, the doctor had a contract with the parent to treat the child. That was a fulfilment of the parent's duty to care for the child. The doctor had no free standing right and the parent had the right to decide on what treatment the child should have.
A minor will only be bound by a contract for necessaries. The general rule is that all other contracts entered into by a minor are voidable at his instance. There might be a contract for “necessaries” with a doctor. The minor is not bound contractually on the basis that he was legally capable of a consensual contract, but quasi-contractually because he is liable to pay a reasonable price for beneficial services. Contraceptive services are not “necessaries.” A child cannot sue and can only sue through a next friend.
Before the National Health Service medical care was obtained by contract. Section 48A of the Education Act 1944 constituted an erosion of parental power in the general interest of the community. Pupils of educational establishments might have to submit to medical examination. In those circumstances the parent would be required to submit the child for medical examination and penalties would be attached for non-compliance. With the establishment of the National Health Service the provision of general medical services by doctors is no longer contractual and there is no payment for medical advice. The statutory provisions deal only with general medical services and there are no regulations which deal with clinics which are set up by the Area Health Authority. The regulations are therefore not of assistance to the department in this appeal.
The clinics are completely anonymous to protect the woman's privacy. The woman has a right to ask that her general practitioner should not be informed of the fact that she has sought advice from the clinic. Such confidentiality and privacy is entirely appropriate for the adult woman but it is not appropriate for the under-16-year-old.
Parents have certain duties and in order to perform them they must have certain powers which are parents' “rights.” The parents must always decide on questions relating to the child's welfare, but their decision can be challenged in the courts. Therefore a parent is always subject to the court. A duty of the parent is a duty to provide medical services if the child needs them. A parent brings in the doctor to fulfil that duty. If the parent and doctor are in conflict, the doctor does not have the right to make a decision on his own.
The department's guidance places no lower age limit at all on girls who might be treated but is merely talking about girls under the age of 16 years. It envisages that the child has a parent, guardian or person in loco parentis.
There are three categories of girls who would not want their parents informed that they are seeking contraceptive treatment: (1) those who are in open rebellion with their parents; (2) those who are in tacit rebellion against their parents and have not informed them of their decision to have contraceptives; and (3) those who are living away from their parents and are de facto independent. In the case of the third category the doctor would not be interfering with parental rights.
A doctor's duty is to give medical advice and treatment. It is accepted that it is unwise for a girl under the age of 16 years to become pregnant. The decision whether to put a girl on contraceptives is a social and moral one, not a medical decision. A doctor should not be a court of appeal from the parent.
The guidance indicates to doctors that they may properly reach a decision to prescribe contraceptives without telling the parents or getting their consent. That is a decision which is entirely within the parental sphere of responsibility. The guidance is so widely drafted that it goes too far and is not in fact confined to “exceptional cases.” The exceptions are too wide. The examples given of people who might suffer if confidentiality is not maintained are not the individuals seen by the doctor. The risk contemplated is the harm which might be caused to those who ought to come to the clinic and might not. Therefore this is a policy decision which is not related to the patient that the doctor is in fact treating. The individual interests of the child who is before the doctor are sacrificed in the interests of others who might be deterred. The interests of the individual child are sacrificed in the interests of this policy.
All parents have a duty to care for their children. It is a natural duty and every species, including the human species, cares for its young. Parents have a legal duty to care for their children and it is a criminal offence to neglect a child under 16 years. Parents also have a moral duty to care for their children. The duty is to be responsible for the physical and moral upbringing of the child. Those two elements are both important and if either one of them is neglected society may suffer. Therefore the primary duty of the parent is towards the physical and moral welfare of the child. The parent has a right to custody and guardianship of the child which is vital to the performance of the parental duty. At common law a parent has a right to possession of the child.
Although the Act of 1557 of Philip and Mary was rooted in the protection of property, it gave particular protection to the girl herself and it was an offence to “deflower.”
The parental right is not absolute and a parent who fails to perform his duty is subject to the criminal law. Circumstances may be such that a parental decision is questioned, but such questioning should be done through proceedings in the court and not by the independent action of the doctor.
This appeal is not about parents' rights against children's rights. It is about doctors' rights. It is contended on behalf of the department that doctors have a special right to interfere with parents' rights. It is a claim of a right in a doctor to act without parental consent or the consent of the court. The question is whether doctors have a right to act as they think fit.
The consequences of a parent's failure to perform his duty is that the local authority can vest in itself the parent's rights. The local authority has power to walk in where the parental responsibility has failed or is failing. But if there is a chance that parental responsibility can be restored, the local authority has a duty to assist in getting the child back with the parent. That shows the necessity for the continuance of parental rights and duties.
When a local authority passes a resolution vesting the parent's rights in itself, the parent has to be informed and has a right to object and to come to court and oppose the resolution. It cannot be done in secret as the doctors claim the right to do. Therefore under the legislation parental rights are not eroded. Any procedure for interfering with or removing parental rights is carefully controlled by statute and there is the requirement to give notice to the parent and the parent has a right to invoke the court. Over and above the statutory provisions which promote parental duty the court has a supervisory duty as parens patriae. It may be necessary for the parent to seek the assistance of the court not only up to the age of 16 but right up to the age of majority.
In Hewer v. Bryant  1 Q.B. 357, 369 Lord Denning M.R. while referring to the “dwindling” rights of parents still accepts that there is the need for some control and guidance from the parent over the whole period of minority. Sachs L.J. spelled this out in greater detail. He said that a father had a personal power physically to control an infant until the years of discretion. He accepted totally the common law principle of the age of discretion within which the parent has total control before the rights begin to dwindle.
The doctor's duty in relation to the child is to help the parents to perform their duties. The extent of the parental responsibility is not absolute but is subject to the control of the courts. Subject to that there must be no invasion of the parental duty.
The department's guidance is intended to pre-empt the control of the court. Even when a doctor acts in a genuine emergency without the consent of the parents of a patient aged under 16 years, he must not thereafter conceal from the parents the fact that he has acted. In regard to contraception, it must be accepted that the girl is in a disaster situation and is in moral danger. It is not a situation in which the parents should be excluded.
Even the most primitive systems of law distinguish between majority and minority in order to protect children from their own indiscretions. The question is where the dividing line should be drawn between childhood and adulthood. In European systems calendar age indicates where the line is to be drawn and intellectual capacity is irrelevant. However precocious a child may be, he is still in the eyes of the law an infant or minor until the relevant age of majority.
It is a crime to have unlawful sexual intercourse with a girl under the age of 16 years. A girl under the age of 16 has no capacity to consent, but if she is willing the offence changes from the more serious one of rape to the less serious one of having unlawful sexual intercourse with a girl under the age of 16/13 years. Evidence of the use of force or the overcoming of resistance is not necessary in Scots Law where the girl is a pupil, i.e. below the calendar age of 12: see Reg. v. Sweenie (1858) 8 Cox C.C. 223.
Under the law at present, minority continues up to the age of 18, but 14 has come to be of special significance because that is the age at which a child is deemed to be capable of crime. It is not correct to say that there is no age of discretion and the age of discretion is rooted in the common law. In the specific area of sexual decisions Parliament has intervened through the criminal law to indicate a fixed age below which a girl cannot consent. That was for the protection of young girls and it is in that very area that the department is proposing to interfere. As a matter of public policy, sexual intercourse is the very thing from which the girl is being protected.
The guidance has the effect of taking away from the girl the protection which she most certainly needs and of usurping the parental position. The department in its correspondence with the plaintiff refers to the “final decision” which is not in the guidelines. The plaintiff is a mother with children living at home who is concerned enough to ask that her children should not be treated without her consent. It would have been perfectly possible for the area health authority to give her the assurances sought.
All that is derived from Reg. v. D.  A.C. 778 is that the child's capacity to consent is a factor to be considered but is not the overall deciding factor. The welfare principle will always override. That case is distinguishable from the present appeal because it was about kidnapping which is a serious criminal offence and in those circumstances the court would not be in favour of an arbitrary age of discretion.
The provision of contraceptive treatment to girls under the age of 16 either constitutes criminal conduct in itself or is so closely analogous to it as to be contrary to public policy.
Poole Q. C. following. There will always be a problem of enforceability of the decision in this appeal, irrespective of what that decision might be. It would therefore be necessary for their Lordships' House to spell out the law.
A doctor's duty of confidentiality contained in the Hippocratic oath is a qualified one. The duty of confidentiality also has certain exceptions. A patient can give consent to others being informed. A doctor may discuss the patient's case with close relatives of the patient or with colleagues who might also be concerned with the care of the patient. There might be a statutory duty of notification, as for example, in the case of an infectious disease. There might be the sphere of medical research in which details of the patient's case might be divulged. Where a child is living with the parents, a doctor who communicates with a parent who is responsible for the child would not be in breach of confidence. At common law the doctor would in such a case be free to make disclosure to the parents.
When faced with a child patient, the doctor's duty of confidentiality would be adjusted to take in the child's lack of capacity to consent and the parental responsibility.
Laws in reply. There are certain negative submissions on which this appeal does not turn because they are not disputed by the department. It is not concerned with the argument, which is accepted, that the law recognises the powers and duties of parents over their minor children. It does not dispute that the law forbids the abduction of a child under the age of 16 from the custody of the parent. It accepts that the notion of the parent's right to custody involves control, although control dwindles as the child grows older. It is not disputed that in some circumstances it might be possible for a doctor to commit the criminal offence of aiding and abetting unlawful sexual intercourse, but it cannot be said that every time a doctor prescribes contraceptives for a girl under 16 years he is acting criminally. Nor is this a case about the circumstances in which it would be wise or foolish for a doctor to prescribe contraceptives for a girl under 16.
The statutes do not cast any light on the content of parents' rights although the statutes deal with the law relating to abduction. However those provisions do not provide the answer to the questions in the present appeal which is dealing with an uncharted area. A doctor in prescribing for and advising a child without the parents' knowledge is not abducting it.
The plaintiff did not refer to the case of Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital  AC 871 and in the area of doctors' duties it would be difficult to ignore that case. It shows that in certain cases doctors have the right to withhold information even from the patient himself.
The plaintiff's case depends upon establishing an absolute rule that parents' rights must not be invaded even in exceptional cases and that a doctor acting without the consent of parents would be acting outside the common law. [Reference was made to the General Medical Council's publication “Professional Conduct and Discipline: Fitness to Practise” (April 1985).]
Wright Q.C. invited to reply on the General Medical Council's publication. The book gives communication with relatives as an exception to confidentiality between doctor and patient: see p. 20. One wonders why there is no such exception when the physical and normal welfare of a child is at risk.
The area health authority did not appear and was not represented.
Their Lordships took time for consideration.
The second declaration
The department's guidance
“REVISED SECTION G — THE YOUNG
The question in the appeal
Parental right and the age of consent
The criminal law case
Solicitors: Treasury Solicitor; Ollard & Bentley, March.
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Their assistance is gratefully acknowledged.