ABSTRACT

The medical treatment and care of children should be carried out in accordance with the general professional standards which all the cases we have already considered have laid down, as stated more than 40 years ago in Bolam, namely, in accordance with a responsible body of medical opinion; although a particular procedure might be challenged if it is not necessarily ‘logical’ (Bolitho), and the courts have consistently said all treatment should always be in the ‘best interests’ of the child. This is a concept that takes its content from the nature of the cases it governs. A ‘child’ or ‘minor’ in English law is a person who has been born and is under 18 years of age. Prima facie, and historically, children have been regarded as coming within the category of those who are legally incompetent to give consent, being unable, at least in the early years of their life, to decide on what medical treatment they should have, until they reach 16. The guiding principle for older children under 16, since 1985, has been and is the so called Gillick principle, whereby a minor of ‘sufficient age and understanding’ (a phrase open to interpretation) is prima facie entitled to make her own decisions and give valid consent in relation to medical treatment. This is contained in various provisions of the English Children Act 1989, in force since 14 October 1991. Prima facie, the consent of a child who is 16 is effective under s 8 of the Family Law Reform Act 1969.