HEAL UoS

Posts Tagged ‘parents’ wishes’

This week’s meeting!

In 2011, Meetings, Testing project on October 25, 2011 at 8:47 pm

This week we have a HEAL meeting on Wednesday 26 October at 1pm (til circa 2pm) in 2007/4 (Law), Highfield, with Sarah Barclay, founder of the Medical Mediation Foundation.Sarah will be speaking on the Foundation’s project on mediation and conflict resolution in paediatric care.

See further: http://www.medicalmediation.org.uk/who-are-we.

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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.

Case of the week: September 22, 2000

In Case of the week, Cases 2000, Death and dying on September 19, 2011 at 8:46 am

Re A (Children) EWCA Civ, Sept 22, 2000.  

The twins, named Jodie and Mary in the reports in order to preserve their anonymity, were born on August 8, 2000 in Manchester, after their parents travelled to the UK from Gozo, Malta (as it was known they were expecting conjoined twins and local resources were limited). They were joined at the lower abdomen/pelvis and – crucially – shared an aorta. Whilst Jodie was reported to have an ‘anatomically normal brain, heart, lungs and liver’, showing normal reactions to stimuli etc [para 6, CA transcript, below], Mary was reported to have a ‘primitive brain’, poorly functioning heart, and an absence of ‘functioning lung tissue’ [at 7], and was therefore dependent on Jodie for survival. The surgical team and hospital were in favour of surgical separation in order to maximise the chances of Jodie’s survival; the pressure placed on her heart in supporting both her and Mary was, according to expert evidence, highly likely to lead to the premature deaths of both children, whereas separation might enable Jodie to survive, albeit it that it would concurrently lead to Mary’s immediate death.

The parents disagreed, noting the influence of their devout religious faith (Roman Catholic) that it should be ‘God’s will’ to decide whether or not either or both of the children should survive. The hospital sought, and was granted, a declaration that the operation might go ahead – it was granted by Johnson J on 25 August 2000. The parents’ appeal was, a month later, dismissed by a unanimous Court of Appeal panel, comprised of Ward LJ, Brooke LJ and Robert Walker LJ. Unsurprisingly this case raised a plethora of legal and ethical/moral dilemmas for the court including – but not exhaustively – the role of parents in decision-making; questions over comparative ‘quality of life’ issues; welfare/best interests; murder, intention & the doctrine of necessity (in defence); role of religion; relevant aspects and intersections of Family Law and Criminal Law; & the sanctity of life (including some comments on the (then) forthcoming Human Rights Act 1998. However, the unanimity of the agreed outcome masks the divergent routes by which the individual judges arrived at their decisions.

For those who wish to read further, the case transcript is freely available to all via  BAILII:  http://www.bailii.org/ew/cases/EWCA/Civ/2000/254.html. Permission to appeal to the House of Lords was granted, but the parents chose not to appeal – nor was a direct application to Strasbourg (ie an alternative route to challenge the decision) undertaken.

Links

Coverage of the CA decision: http://news.bbc.co.uk/1/hi/health/937586.stm  

http://www.guardian.co.uk/uk/2000/sep/28/4?INTCMP=ILCNETTXT3487

Coverage of reactions to the decision: http://news.bbc.co.uk/1/hi/health/937377.stm

This decision is also reported at [2001] Fam 147, [2000] 4 All ER 961, [2001] 2 WLR 480, [2000] 3 FCR 577, [2001] 1 FLR 1, [2001] Fam Law 18, 57 BMLR 1; but access to these resources may be restricted (subscription required).