By Dennis Ndiritu
I Kennedy in ‘Patients, Doctors and Human Rights’ (1998), Essays in Medical Law and Ethics, notes that the concept of consent operates as a unifying principle running through the provision of health care. It represents the legal and ethical expression of the human rights to have one’s autonomy and self-determination respected. The requirement that the patient’s consent be obtained operates as a constraint on the power of the healthcare professional. The issue of consent is tied to age as it is only with the attainment of the appropriate age as prescribed law that a child can be allowed to give consent as to treatment; otherwise this right is left to the parents or courts in case there are no parents.
J. Fortin, in Children’s Rights and the Developing Law establishes that the United Nations recognizes the right of a child to self-determination and goes on to advocate for this in the International Convention on the Rights of the Child of 1989. It advocates for the rights of every child to self-determination, dignity, respect, non- interference and the right to make informed choices. Further, P. Alderson in ‘European Charter of Children’s Rights’  Bulletin of Medical Ethics notes that the European Charter for Children in Hospital goes on to state that children and parents have the right to informed participation in all decisions involving their health care and provides for the protection of every child from unnecessary medical treatment and investigation.
Consent with regard to age was discussed in the landmark case of Gillick vs. West Norfolk and Wisbech Area Health Authority and Another, which endorsed the rights of the “mature minor” or “Gillick competent” child to consent to her own medical treatment. The ascription of children was found to be important if children were to be treated with equality and autonomy. In this case, the D.H.S.S. (as it then was) issued a circular to area health authorities which contained advice effectively stating that if, at a family planning clinic, a doctor was consulted by a girl under 16, she would be acting unlawfully if she prescribed contraceptives for the girl, as long as she was acting in good faith to protect the girl from the harmful effects of sexual intercourse. The plaintiff, Mrs Gillick, who herself had five daughters under 16 years, sought an assurance from her local area health authority that her own daughters would not be given any contraceptive advice or treatment without her prior knowledge and consent so long as those girls were under 16.
The authority refused to provide that assurance. In consequence, Mrs. Gillick brought an action seeking against the area healthy authority, a declaration that a doctor, or other professional employed by it in its family planning service, could not give advice and treatment on contraception to any of her children under 16 without her consent, because to do so would be unlawful as being inconsistent with the plaintiff’s parental rights. At first instance, Woolf J. refused to grant the declaration. Mrs. Gillick appealed to the Court of Appeal where she was successful and the judgments emphasized the parental right to control the child. The health authority then appealed to the House of Lords, which allowed the appeal on a 3-2 majority. This decision set out the “Gillick competent concept”.
A child under 16 years may make medical decisions according to her chronological age, in conjunction with mental and emotional maturity, intelligence, her comprehension of the nature and consequences of the decision to be made and quality of the information provided. Lord Fraser in his decision was of the opinion that provided the patient, whether boy or girl, is capable of understanding what is proposed, and of expressing his or her own views, there is no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorize the medical man to make the examination or give the treatment which he advises. After all, a minor under the age of 16 can, within certain limits, enter into a contract. He or she can also sue and be sued and give evidence on oath.
Moreover, a girl under 16 can give sufficiently effective consent to sexual intercourse to lead to the legal result that the man involved does not commit the crime of rape. He quotes R v Howard  3 All E.R. 684 at 685, where Lord Parker C.J. said that “… in the case of a girl under sixteen, the prosecution, in order to prove rape, must prove that she physically resisted, or if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist…there are many girls under sixteen who know full well what it is all about and can properly consent.” He concludes by recognizing that there is no statutory position that compels him to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment, provided that she has sufficient understanding and intelligence to know what they involve.
Lord Scarman on the other hand agrees with Lord Fraser as he notes that except where statute otherwise provides, a minor’s capacity to make his or her own decisions depends on the minor having sufficient understanding and intelligence to make the decision and is not to be determined by any judicially fixed age limit. However of paramount importance is the fact that he goes on to establish that the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. The determination of whether the child achieves sufficient understanding of what is involved to give a valid consent in law will hence be a question of fact.
However, Lord Templeman, in his dissenting opinion, argues that contraception should only be considered if and when the combined efforts of the parent and doctor fail to prevent the girl from participating in sexual intercourse and there remains only the possibility of protecting the girl against pregnancy resulting from sexual intercourse. According to him, a doctor is not entitled to decide whether a girl under the age of 16 shall be provided with contraceptive facilities if a parent who is in charge of the girl is ready and willing to make that decision in exercise of parental rights. Discrimination as per the International covenant on economic, social and cultural rights is understood to mean any adverse distinction, exclusion, restriction or preference which is based on any ground such as ‘race, colour, sex, language, religion, political or other opinion, national or social origin, birth or other status’ and which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise of rights. However, International and regional human rights standards clarify that children have the right to objective and scientifically supported information which will aid her in making rational decisions on contraception, in line with their evolving capacity, and that states have the duty to provide it. The inclinations of Lord Templeman therefore point towards the discrimination of children from enjoying the freedom of consent on contraception.
Therefore from the majority decision in Gillick it can be established that no criminal offence is committed by a doctor who gives contraceptive advice or treatment to a young person under 16 without parental consent. The majority emphasized that criminal liability would depend upon intention, so that a doctor who provided contraceptive advise or treatment to a girl under the age of 16, honestly intending to act in the girl’s best interests (by avoiding the consequences of unwanted pregnancies) rather than with the intention of facilitating unlawful sexual intercourse would incur no criminal liability.
Thus in the case of a child of the age of consent and one below the age of consent who engage in sexual intercourse, it will be mandatory to establish whether the one below the age of consent is Gillick competent. In doing so, the minor should be able to be aware of the consequences and nature of the decision of engaging in sex with the one of age of consent. This will involve achieving sufficient understanding and intelligence to enable him understand fully what is proposed by the child of the age of consent. The minor can be said to be capable of having sufficient intelligence to ably understand what the child of the age of consent is suggesting and the risks involved.
Thus Doctors should have an assessment of the minor to establish this as a matter of fact, and not just denying the child of the age of consent the contraceptives by mere reason of age. Any refusal to provide contraception to the child of the age of consent on the prescribed grounds of age for sexual intercourse is therefore a violation of their rights. The refusal cannot be claimed to be in the best interests of the child of age of consent, as a thorough evaluation of the minor isn’t conducted. Lord Scarman in the Gillick case states that, “although parental rights clearly exist, they do not wholly disappear until the age of majority. The principle of the law is that parental rights are derived from parental duty and exist only as long as they are needed for protection of the person and property of the child.” It is therefore the parental right, which yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring the decision. Thus Doctors should allow minors to exercise this decision and also respect those of the age of majority wishes and right to their choice.