Case of the week: October 17, 1985

In Case of the week, Reproduction, Testing project on October 19, 2011 at 6:16 am

Throughout the 1980s, Victoria Gillick, a pro-life campaigner, undertook a legal battle. Her initial action was sparked by the 1980 DHSS circular (an update of the 1974 DHSS circular), which allowed doctors to provide contraceptive advice and treatment to under-16 year old girls – they were entitled to doctor-patient confidentiality and in need of protection from risks such as pregnancy and STDs. Victoria Gillick contacted her local Area Health Authority seeking assurance that none of her five daughters would be provided the contraceptive pill without parental consent. When this was not forthcoming she took legal action to challenge the provisions of the circular.

At first instance, she sought a declaration that the guidance was unlawful and adversely affected parental rights and duties. Her initial failure in the lower court was followed by success in the Court of Appeal where the Lord Justices unanimously agreed that the guidance in the circular was unlawful; hence doctors should not be able to give contraceptive advice and treatment to under-16 year olds without parental consent, except in cases of emergency.

The DHSS appealed to the House of Lords where they succeeded with a 3:2 majority. Lords Fraser, Scarman and Bridge accepted that if an under-16 year old was competent enough to understand the issues involved and the doctor believed it was in her best interests, then it was lawful for a doctor to provide contraceptive advice and treatment without parental consent. Lord Fraser’s guidelines gave rise to the ‘Gillick competence’ test, often referred to as ‘Fraser competence’, which is now widely used to assess issues of competence of under-16 year old children (including with regard medical treatment).  Gillick was the first legal recognition of the rights of under-16 year olds to give effective consent and remains the leading case in this area. The Gillick principles were reaffirmed in 2006 in Axon, R (on the application of) v Secretary of State for Health [2006] EWHC 37; see also coverage by the BBC.

This is a guest post by Emma Nottingham of the Law School, University of Southampton.

  1. Interesting post! I wonder how much of this is because the pill and contraception is quite a unique area of medicine, being a treatment against a “normal” bodily process? Weird to think that it would make more sense for the health of the woman to prescribe condoms than the pill, especially with eh rising cases in STD!

    • Thank you Ingrid. It is definitely a unique area of medicine. Interestingly, the judges in the case mostly spoke in terms of contraception genreally, and not just about the pill. I suppose the issue could only arise in terms of the pill since condoms are not prescribed, and hence their use cannot be controlled, but it was an opportunity to talk about contraception as a whole.The developments since Gillick are also quite interesting. Now ‘treatment against a “normal” bodily process’, through means of the pill, is more encouraged for under 16’s, in both policy and social attitudes. Perhaps becuase of the high teenage pregnancy rates, so maybe the health of society is equally as relevant as the health of the woman?

  2. The issue of ‘normality’ is an interesting one. I am not sure how the contraceptive pill is more (or less) against a “‘normal’ bodily process” than in other areas of medical practice. A lot of medicines intervene in normal bodily processes. Does the concept of ‘normality’ apply more to social than physical ‘norms’? From Mrs Gillick’s world view, what she thought the DHSS was promoting was against the natural moral order. Amongst other things, by concentrating on capacity the House of Lords emphasised the ‘normality’ of family planning by denying that it needed a special set of concepts. I think Emma is right to suggest that there has been a change in social attitudes such that Mrs Gilllick’s position now seems more unusual than it appeared at the time. I expect that see would see this as evidence of the ‘slippery slope’ in action.

  3. Yea, the pill has an interesting history as a technology –I know the early pill sought to prevent pregnancy while maintaining monthly bleeding because it was felt that the woman would become unsettled by the missing external validation of her reproductive capacity. Now, not getting your period with the new combination pills and implanted contraception is promoted as one of the potential advantages! It is an interesting question as to whether there has been a change in social views around reproduction. I’d argue that there has been a fairly standard view in the modern nation state that children should not be born to young women in a poor economic situations, but how this has been achieved –from religion, institutionalisation, sterilisation, drugs treatments has differed through place and time.
    I was being sloppy and using “normal” human processes as a social view rather than a medical, but actually I can’t think of many areas of medicine which seek to disrupt processes of the body which are seen as “normal”–apart areas like menopause. For example I agree that the cellular processes around division and cell death are seen as “normal” but I’ve only heard a few scientists /medical voices arguing that once conceptualised as cancer these processes are “normal”.
    Can I actually check something –what does the law say about a young person’s right to confidentiality? I think when I read this I thought the case was about both the capacity to consent and the right to confidentiality, but I guess they are two seperate issues?

  4. Yes it is about a young persons rights to confidentiality too. The law on confidentiality for under 16s is that, a pateints confidentiality should not be broken by the doctor unless they are considered to be at risk. Policy and guidance has devleoped in such a way that even if a young person is not competent to consent, patient confidentiality should still be upheld. So yes I suppose they are two separate issues but nevertheless very important to consider alongside eachother.

  5. […] available on iPlayer for the next week). Such debates are, of course, not new – see Gillick. The Government has announced plans to publish a new sexual health policy document in 2012, but […]

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