How is Gillick protecting the innocent?

Gillick exposes our most vulnerable to the ill-conceived whims of their own immaturity

If you are a parent, look over at your children and ask yourself the following question:

(i) Do YOU think they are sufficiently competent to understand what informed consent is, whether or not what they have received is informed consent, and the future ramifications of any decision they might be asked to make right now?

Further:

(ii) Do you think your child is capable of consenting to or even comprehending the new types of Relationships and Sexuality Education being foisted upon them in schools? Lesson plans that promote biologically impossible sexes beyond that of male and female, that teach children they can fluidly flip-flop between being male, female or something else at a whim like flipping a light switch, that instruct your child in alternate sexual behaviours and recommend teens have anal sex, or that teach under-fours about masturbation and assign practice of it for homework?¹

And:

(iii) Do you think it is appropriate for a small number of parents to attain fame, fortune or notariety through use of their child as a pawn to feed their own attention-seeking needs?²

Decision-making and the Law

In the common law (the law based on the English legal tradition that operates in countries like the United Kingdom, Canada, Australia and New Zealand) there currently exists a dichotomy between the criminal law domain which often speaks of the extremely poor decisions made by incompetent teenagers and youth during their formative years (which some authors consider continues up to around the age of 25), and the medico-legal domain that seeks to distinguish ever- younger children as competent to make decisions with far reaching implications for their entire future. Either, as one domain often describes, they are children and youth not yet possessed of the skills required to competently make complex life decisions. Or, as the other domain asserts, from at least the age of 12 some are young adults possessed of sufficient competency to take charge of and full responsibility for those same decisions. Whichever postulate you prefer, it should be agreed that continued adherence to the position that both postulates are true would seem entirely untenable.

Reasoning in conditions of uncertainty is a difficult skill. It is made significantly harder when the mainstream information we are presented to support our decision-making, including from government sources, may itself be questionable or tainted. When adults with many years of lived experience continue to struggle with decision-making in such circumstances, it is implausible for courts to believe children, especially those as young as 12, can make competent decisions about issues with life-altering consequences. Recently I conducted a formative broad analysis of cases and literature, contrasting Surrogate Consent, Parens Patriae and Gillick Competence. I was especially drawn to investigate expanded use of Gillick competence in medico-legal judgements, and formed the belief that it was potentially being used as a means to offload responsibility for key decisions onto what many judges still acknowledge as ‘the child’. I sought to understand the contradiction between legal domains, and considered whether resolving this dichotomy might necessitate a return to the seemingly more sensible postulate of criminal law.

What did I find?

I reviewed 20 cases that came before the courts in UK, AUS and NZ between 2019 and 2022 involving Gillick competence. I found that almost all cases involved a dispute between the child’s parents and two contended issues dominated: (i) gender transitioning treatments; and (ii) Covid-19 vaccinations.

Most people believe judges make decisions based on the law as laid down in legislation (Acts of Parliament and related regulations) and precedent (court judgements in previous cases). However, for both issues I noted that judges more often relied on opinion-laced rather than evidence-driven website sources from: (a) government (for example, those of the Prime Minister’s Office, Health Department or medical regulators); and (b) non-goverment (for example, those of the mainstream media, academic or clinical professionals or even sometimes bloggers that claimed to be professionals or to have relevant qualifications or knowledge) whose content simply supported the position the judge already favoured. In some examples this latter point was especially obvious where judges dismissed as unqualified or conspiracy-laden sources of an almost identical but rival viewpoint offered into evidence by the party opposed to the treatments or Covid-19 vaccinations, while supporting their judgement with pro-vaccine or pro-trans websites of a similarly unqualified and questionable nature. Even where a judge relied on the prior decision of an equal or higher court, review of that supporting decision often found the judgement in that court had been based on these opinion-laced websites.

Disturbingly, while in some jurisdictions a standing principle says that an order cannot be made to compel medical treatment of a child on the basis that it benefits another individual or society, there were many examples of a child being ordered to recieve Covid-19 vaccination in order to benefit (alegedly protect) another child, parent or grandparent in the immediate family. Only one judge dissented from this position, refusing to order a child to be injected with the mRNA shots because he recognised that if later information suggested that child did not need, or was harmed, by the shots… you couldn’t remove the shot from the child once administered.

Children and adolescents tend towards risky and impulsively made decisions focused on reward in the present, with little or no concept of future events they cannot predict or comprehend. The more adolescents believe engaging in a particular activity will mean they are favourably viewed by their peer group, the more likely they are to accept the potentially significant costs of risky behaviours (peer pressure and the so-called ‘social disease’). Children in the cases often made poor quality decisions based on incomplete, sometimes incorrect and often misunderstood information. In some cases there were also clear examples that the children were coaxed to decide in a particular way through coercion or the application of behavioural nudging.

From the stories of youth who had transitioned only to later de-transition back to their birth sex, it was clear that handing these decisions over to the most inexperienced, impulsive, and least cognitively developed person in the courtroom had not been the best approach. The Gillick criteria and current approach serve only to make it incredibly easy for doctors and judges to find competence in our children and young people and side-step responsibility for the decision and its outcome for themselves. We must question whether continued use of Gillick to give children medical autonomy should be challenged. Especially when these judgements show courts are becoming less willing to override even the most self-destructive wishes of children they have also adjudged as Gillick competent. Rather than supporting the contention that they are ready and competent to make serious and life-long decisions, the revelations of many young people are more consistent with the criminal law postulate from earlier in this article that recognises them as children and youth not yet possessed of the skills required to competently make complex life decisions. Many of the examples discussed in my paper show that affording children such a high degree of agency that they can make permanent and life-altering medical decisions has placed them at risk from their own immaturity.

If nothing else, one thing is gradually becoming clearer: Gillick competence may no longer be in the best interests of the child.

What has Gillick competence become?

Gillick competence arose out of a protracted court case in which a mother sought injunctive relief to prevent a local health authority from providing information of a sexual education nature, and the contraceptive pill, to her daughters. While this statement somewhat simplifies a very complicated set of proceedings, the key take-away was that Gillick competence at least initially was about finding reasoning, comprehension and therefore competence in the child to enable provision of healthcare of either an immediately corrective (i.e. healing a broken arm or stitching a bleeding wound) or impermanent (i.e. a temporary treatment like the contraceptive pill that could be ceased and, once ceased, no longer has any effect on the child such that the child’s body returned to the previous or normally functional state) nature.

However, it is clear that there has been a progressive shift away from simply providing judicial orders to consent medical treatment, and towards seeking Gillick competence in the child so that they can be found responsible for making their own decision. This shift has been aided by doctors like those of Tavistock in the UK who have become only too willing to find almost every child competent to give consent³, even though most doctors acknowledge competence can be very difficult to assess in children. For those children where Gillick competence is not readily apparent, it has become common practice for motivated clinicians to simply coach them repeatedly on the information required to demonstrate competence⁴. Where a child does not graduate from this competence college, they are simply discharged by the doctor or end up in our courts seeking judicial consent.

The full academic law article, list of court cases that were reviewed and citations of reference materials can be found here.

Where to from here?

My initial foray into reviewing the current situation for informed consent in minors, and the expansion of Gillick competence, had been intended as a singular piece of work. However, my review turned up evidence of a much broader issue that has poisoned the well of medical training and teaching materials, allowed lobby groups and corporate interests to promote politically and financially motivated agendas in schools that then result in children who think they want expensive medical treatments that can potentially destroy lives and families with only the financially interested corporation benefiting in the long run.

I would like to continue to investigate this issue, and have reached out to the general public and medical profession via this twitter post:

If you fit into one of the three groups mentioned in the post, please private message me either on Twitter or here on substack. Alternatively, you can send a confidential email to “lawhealthtech at hikergroup.org”. My intention is to conduct a more in-depth investigation of the issues starting from the original 1986 Gillick judgement and investigating materials from political, clinical and academic sources. I also want to interview doctors, parents and children who have benefitted or been negatively affected by the use of Gillick competence in their lives.

Further, there is a broad range of literature and research costs from the purchase of legal and medical texts through to paying fees for FOIA requests that I already know will be significant. Given that research such as this that seeks the truth regarding how Gillick competence is now being used and abused to permanently harm our children is not something the mainstream will want or support, this work will not have the backing of a research grant or tolerant employer. You will note that my previous affiliation with the University of Edinburgh appears on the preprint because I was engaged there at the time I wrote it (a paper I might add that no academic journal will publish, and three have already either rejected or simply deleted from their submission site). However, my ongoing research and commentary in such narrative opposing areas led to my being constructively dismissed from that research post. I will have to undertake this research in my own time and meet any costs myself.

If this work is of interest to you, consider offering your time to undertake and financially support FOIA requests or locate and procure relevant materials. Sponsor the purchase of relevant texts. Or subscribe to this substack where, as with my already 7-part investigation into the Lucy Letby trial and issues at the Countess of Chester Hospital, new material from this investigation will be regularly posted.

1. https://guardian.ng/news/uk-schools-teaching-12-year-olds-anal-sex-nine-year-olds-masturbation-report/

https://www.telegraph.co.uk/education-and-careers/2023/03/04/masturbation-lessons-100-genders-what-children-taught-school/

https://www.dailymail.co.uk/news/article-12082967/Fury-WHOs-sex-education-early-childhood-masturbation-FOURS.html

2. Grossman, M. (2023). Lost in Trans-Nation: A Child Psychiatrist’s Guide Out of the Madness. SkyHorse Publishing.

3. Bell v Tavistock and Portman NHS Foundation Trust [2021] WL 04228131 at [33]: “...it was extremely unusual for either GIDS [or UCH or Leeds] to refuse to give [puberty blockers] on the grounds that the young person was not competent to give consent.”

4. Ibid at [33]: “The approach adopted [appeared] to be to continue giving the child information and to have more and more discussions until s/he is considered Gillick competent or is discharged.”