The Court of Appeal gave reasons for its order on 30 June, 1992, which enabled J, a girl of 16, to be treated at a specialist hospital for anorexia, notwithstanding her lack of consent to such treatment.
J's father died when she was five and her mother when she was eight. She and her older sister and younger brother were received into the care of the local authority. In 1990, when J was almost 14, her grandfather, to whom she was greatly attached, died.
In June 1990, J began losing weight. In 1991 she was admitted to a specialist residential unit for treatment for anorexia nervosa. In 1991 J consented to be fed by a nasogastric tube for a short time.
The local authority applied under section 100(3) of the Children Act 1989 to the court to decide whether it would be lawful to give J, who was by then 16, medical treatment to which she did not consent. J wished to stay at a specialist adolescent residential unit run by a consultant child psychiatrist. She refused to undergo treatment at a hospital specialising in the treatment of eating disorders.
Mr Justice Thorpe, decided that, although J was able to make an informed decision, he had jurisdiction to make orders concerning J's medical treatment which conflicted with J's wishes and authorised her treatment.
During the hearing of J's appeal, J's condition deteriorated and there was a serious risk of irreversible harm to her brain and reproductive organs. The Court of Appeal therefore authorised her treatment at the hospital, notwithstanding her lack of consent.
Allan Levy QC and Deborah Sawhney (JM Somerton) for J; John Samuels QC and Caroline Budden (County Solicitor) for the local authority; James Munby QC and Roderic Wood (Official Solicitor) as amicus curiae; J's aunt in person.
LORD DONALDSON MR said that the High Court's inherent jurisdiction in relation to children - the parens patriae jurisdiction - was exercisable whether the child was or was not a ward of the court. In Gillick v West Norfolk and Wisbech Area Health Authority (1986) AC 112 the House of Lords held that at common law a child of sufficient intelligence and understanding could consent to treatment, notwithstanding the absence of the parents' consent. Here, the issue was whether the court had power to override a minor's refusal to accept treatment.
The legal purpose of seeking consent was to provide those concerned in the treatment with a defence to a criminal charge of assault or battery or a civil claim for damages for trespass to the person.
It did not provide any defence to a claim in negligence. Section 8 of the Family Law Reform Act 1969 was addressed to that legal purpose by making the consent of a 16- or 17-year-old as effective as if he were 'of full age'. Section 8 did not say that it had the further effect of depriving someone with parental responsibilities of the power to consent.
While the carrying out of abortions by doctors in reliance upon the consent of parents and despite the refusal of consent by 16 or 17- year-olds might be possible as a matter of law, his Lordship did not see any likelihood taking account of medical ethics, unless the abortion was truly in the best interests of the child.
The wishes of a 16- or 17-year- old child were of the greatest importance. However, it was a feature of anorexia nervosa that it was capable of destroying the ability to make an informed choice.
The inherent powers of the court extended beyond the powers of a natural parent. Therefore it had power to override the refusal of a minor by authorising doctors to treat the minor in accordance with their clinical judgement.
In summary, section 8 gave minors who had attained 16 a right to consent to surgical, medical or dental treatment. Such consent could not be overridden by those with parental responsibility for the minor. It could, however, be overridden by the court.
No minor had power by refusing consent to treatment to override a consent to treatment by someone who had parental responsibility and a consent by the court. The refusal was an important consideration. Its importance increased with the age and maturity of the minor.
LORD JUSTICE BALCOMBE, agreeing, said that the court would approach its decision with a strong predilection to give effect to the child's wishes. Nevertheless, there must come a point at which the court could override the child's wishes in the child's own best interests, objectively considered. Such a point would have come if the child was refusing treatment in circumstances which would in all probability lead to the child's death or to severe permanent injury.
LORD JUSTICE NOLAN, agreeing, said that it was of the essence of the court's inherent jurisdiction that the court had the power and the responsibility in appropriate cases to override the views of both the child and the parents in determining what was in the child's best interests.
One must start from the general, but not invariable premise that the protection of the child's welfare implied at least the protection of the child's life. In general terms, an individual who had reached the age of 18 was free to do with his life what he wished, but it was the duty of the court to ensure, so far as it could, that children survived to attain that age.
Ying Hui Tan, BarristerReuse content