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3 J. Child L. 121 (1990-1991)
Gillick and s.8 of the Family Law Reform Act 1969 - An Historical Note

handle is hein.journals/chilflq3 and id is 135 raw text is: Gillick and s. 8 of the Family Law Reform Act 1969 - an historical note MICHAEL BRYAN Introduction Every fifteen-year-old knows that the House of Lords in Gillick v. Norfolk and Wisbech Area Health Authority' had to decide whether a young person under 16 could receive contraceptive advice or treat- ment without the consent of a parent or guardian. The decision was reached within the framework of s. 8 of the Family Law Reform Act 1969. The relevant pro- visions are as follows: 'S. 8(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 ... (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.' The majority of the House of Lords held that it is lawful for a person under 16 to receive medical advice and treatment, including advice on contraceptives. However, divergent judicial approaches have created some uncertainty as to precisely when the advice or treatment will be regarded as lawful. What is apparent from a reading of all the judgments is that s.8 provided minimal assistance in resolving the issue before the House. While s. 8(1) empowers sixteen- year-olds to consent to medical treatment it is silent on the status of consent given by those under that age. Section 8(3), which might be thought to throw light on this very question, in fact deepens the obscurity. Lord Scarman read the subsection as *clarifying the law without conveying any indication as to what the law was before it was enacted'2 and reached his decision in favour of the legality of DHSS guidelines on consent by minors without relying on its terms. Some com- mentators have construed the provision more posi- tively to permit a young person under 16 to consent to medical treatment if he or she understands the decision. Professor Freeman, writing shortly after the Court of Appeal had declared the DHSS guidelines unlawful, took this line.3 He asserted that s. 8(3) meant 'that a younger child capable of understanding what is involved may also give effective consent.' He went on, 'If I am right, the Court of Appeal's decision is per incuriam and can be safely ignored by doctors who secure the consent of under-age girls.' Given the gnomic ambiguity of the section, an analysis of the legislative history might repay study if THE JOURNAL OF CHILD LAW, SEPTEMBER-DECEMBER 1991 it threw light on what Parliament intended when it enacted this provision. The following account is pre- sented purely for its historical interest. The meaning of s. 8, and the circumstances in which someone under sixteen can consent to medical treatment, are now to be determined by reference to the judgments of the House of Lords in the Gillick case. The casual specu- lations of Ministers and M.P.s are irrelevant. Never- theless, it is the thesis of this note that the decision reached by the majority of the House of Lords directly contradicted the interpretation placed upon cl. 8 (as it appeared in the Family Law Reform Bill) by the majority of M.P.s of all parties when the matter was debated in the House of Commons. Conse- quently, although the decision has been welcomed by most legal, medical and social commentators, the construction adopted by the majority would not have been regarded as either correct or desirable by the legislators who enacted it. The Parliamentary history The genesis of s. 8 was a recommendation of the Latey Committee on the Age of Majority' which, if it had not foreseen the precise issue in Gillick, had certainly intended the neutral construction of s. 8(3) adopted by Lord Scarman in that case. The Family Law Reform Bill, which inter alia incorporated the pro- posals of the Latey Committee, was introduced in the House of Lords on the 31 October 1968 and received its second reading on 26 November. Baroness Serota, presenting the Bill for the Labour Govern- ment, completely omitted any mention of the clause in an otherwise detailed account of its provisions. Thereafter, discussion of its terms in the House was conspicuous by its absence. It seemed initially that a similar fate would befall the clause in the House of Commons. The Attorney-General, Sir Elwyn Jones, devoted four and a half lines to it in opening the debate on the second reading. Optimistically, he averred that it would 'clear up confusion about the ability to consent to medical treatment.'6 It was not until the Committee stage of the Bill that the clause received any scrutiny. At that stage, Mr Eldon Grif- fiths (Con., Bury St. Edmunds) proposed an amend- ment which would have removed the right to consent to treatment from a young person over 16 'in the case of a minor in statu pupillari and resident during term time for not less than half the year at an educational establishment. The clear aim of the amendment was to place on parents the responsibility for consenting to medical treatment to be performed on children attending boarding schools. 121

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