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The Queen On The Application Of Sue Axon v The Secretary Of State For Health (The Family Planning Association: intervening) [2006] EWCA 37 (Admin)

The court rejected the claimant’s argument that medical professionals are not obliged to keep confidential advice and treatment given to persons under sixteen years of age on contraception, sexually transmitted infections and abortion. Provided the child is Gillick competent the parental right to determine medical treatment terminates.

Queen's Bench Division: Silber J (23 January 2006)

Summary
The court rejected the claimant's argument that medical professionals are not obliged to keep confidential advice and treatment given to persons under sixteen years of age on contraception, sexually transmitted infections and abortion. Provided the child is Gillick competent the parental right to determine medical treatment terminates.

Background
The claimant sought a declaration that a doctor was under no obligation to keep confidential advice and treatment proposed to a young person, under the age of sixteen, in respect of contraception, sexually transmitted infections and abortion and must therefore inform the parents unless to do so would or might prejudice the child's physical or mental health, so that it is in the child's best interests not to do so. Alternatively, and in the event of this declaration being rejected by the court the claimant contended that a specific declaration should be made in respect of the advice and treatment proposed on abortion.

Currently, medical professionals are bound by advice contained within the "Best Practice Guidance for Doctors and Other Health Professionals on the Provision of Advice and Treatment to Young People under Sixteen on Contraception" ("the 2004 Guidance"). The claimant further sought a declaration that this Guidance was unlawful. The Secretary of State for Health, together with the intervener (The Family Planning Association) opposed the making of these declarations.

Judgment
The starting point for the judgment was a lengthy consideration of the leading case on this issue Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, concentrating on Lord Fraser's Guidelines. In that case the majority had held that a doctor could give advice and treatment to a child under the age of sixteen if she had sufficient maturity and intelligence to understand the nature and implications of the proposed treatment and provided certain conditions were satisfied.

The judge then highlighted the two statutory provisions relevant to this action; parental responsibility and the principle that a child's welfare is paramount when considering questions of their upbringing.

The five broad submissions proposed on behalf of the claimant were then considered;

(a) the medical professional was under no obligation to keep confidential advice and treatment which he proposed to provide in relation to contraception and sexually transmitted infections

(b) the same as (a) but only in relation to abortion

(c) the medical professional is not entitled to provide actual advice and treatment on these issues without the parents knowledge

(d) the 2004 Guidance is unlawful

(e) the 2004 Guidance fails to protect the claimant's rights under Article 8 of the ECHR.

Prior to addressing these submissions the judge rejected the claimant's reliance upon American case law as not relevant.

In relation to (a) the judge rejected the claimant's argument that there should be any exception to the duty of confidence. He relied upon the decision of Gillick where the majority had implicitly rejected a similar limitation. Therefore, if the claimant's submission were accepted it would follow that Gillick was wrongly decided.

Further, the judge highlighted that whatever a patients age the information the medical professional receives deserves the highest degree of confidentiality. As a consequence, the lack of confidentiality would probably or might well deter young people from seeking advice and treatment on contraception, sexually transmitted diseases and abortion.

Finally, the declaration might well be inconsistent with Articles 12, 16 and 18 of the United Nations Convention on the Rights of the Child.

In relation to (b) the judge again highlighted the judgment in Gillick and stated that there was no reason why that approach should not also apply to other proposed treatment. If the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed the parental right to determine whether or not their child under the age of 16 will have medical treatment terminates.

Addressing (c) the judge repeated much of his judgment in relation to (a) and (b) and relied upon the same principles from Gillick.

The claimant made several sub-submissions relating to (d) and the unlawfulness of the 2004 Guidance. Overall, the judge stresses that the 2004 Guidance follows the conditions established in Gillick and therefore it is not unlawful.

Finally, in relation to (e) the Article 8 issue, the judge concluded that it was difficult to see why a parent should retain an article 8 right to parental authority where the young person concerned understands the advice provided by the medical professional and its implications. In any event, the judge agreed with the respondents that even in the event he is wrong on this point the 2004 Guidance falls within article 8(2) as being necessary for the protection of the rights of others. European case law has established that where the rights under article 8 of the parents and those of the child are at stake the child's rights are the paramount consideration.

Silber J concluded by stating that the medical professional is entitled to provide medical advice on these matters provided he is satisfied of the five principles referred to in Gillick as Lord Fraser's Guidelines. The claimant was not entitled to the relief which she sought.

Read the full text of the judgment here