Gillick v West Norfolk and Wisbech AHA: The Right of Adolescents to Make Medical Decisions and the Many Shades of Grey

Abstract

In the Gillick case the lower court decision was challenged by the mother of a child below the age of 16, whose doctor had given advice on the use of contraceptives against the mother’s wish. The decision was overruled by the court of appeal and became a threshold for consent and confidentiality for adolescents, who by definition had reached the age of 16. The paper discusses how the Gillick decision has affected the right to make decisions especially as it relates to adolescents. In a counterfactual it examined the decisions of the courts pre-Gillick and post-Gillick to determine whether autonomy exists and the progress made since Gillick. The paper examines the ex-post cases of Re-R, Re-M and Re-W, which diverged from Gillick direction. For instance, in the case of Re-R, the court ruled that no minor with fluctuating competence could be considered competent, whereas using the Gillick criteria competence could be established. It concludes that, although Gillick opened doors on competence, it only moved us steps closer but did not solve the problem of adolescent autonomy; since in application, the court has often assumed its parens patriae jurisdiction, as in the case of Re-E. The court needs to give more autonomy to adolescents, as it is unfounded to consider that they are more conscious of the present and not the future. They can make their own decisions and therefore mistakes. Sometimes the lack of understanding on the part of the adolescents is premised on insufficient information from the physician or health care professional and this should be addressed.