Talk:Gillick competence

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Regarding the (now removed) comment that Mrs Victoria Gillick did not want to be known for the 'Gillick' decision and have it named after her, I find this laughable. The whole point of her suing the Health Authority was that she wanted to establish the law once and for all and be the one who took a stand against what she saw as immoral, anti-Christian behaviour. It didn't go her way; that's her tough luck. If she didn't want her name associated with the case she shouldn't have sued and made a song and dance about it. - Richardcavell 05:54, 17 April 2006 (UTC)

[edit] Concurrent competence or extinguishment?

I'd refer to McHugh J's decision in Marion's case 175 CLR 189, 316. It seems to indicate that parental ability to consent extinguishes as soon as the child becomes competent. See also John Blackwood, ‘Medical Treatment of the Intellectually Disabled Child’ (1994), 1 Journal of Law and Medicine 252, 253-4. I'm pretty sure that English and Australian law are different at the moment, but of course the High Court can change its mind.

It's probably a little outside the role of wikipedia to be finding a definitive answer to these points, but that's my opinion for what it's worth. - Richardcavell 07:40, 17 April 2006 (UTC)

I don't think concurrent consents is a matter of the High Court 'changing its mind'. There simply is no explicit High Court authority on the issue. You noted that McHugh J said in Marion that Re R is 'inconsistent with Gillick', which presumably means he disagrees with it. However, the majority judgement gave no opinion on the matter, although they were certainly aware of Re R(they footnoted it). In any case, any opinion would have been obiter, as Marion did not reach the Gillick test.
On this last point, Marion can be quite a difficult case to understand becuase it was not a direct application of Gillick. Rather, Gillick was considered becuase it was relevant to arguments about the extent of parental power and the parens patriae jurisdiction. There is an argument that the reasoning of the majority in Marion regarding the issue of special medical procedures (Mason, Dawson et al) implicitly relied on Gillick terminating parental rights. Ummm... this argument is hard to present concisely and probably not worthy of inclusion in an encyclopedia.
In any case, we lack explicit guidance as no subsequent cases in lower courts have raised concurrent consents because the parents have been in agreement with the minor's refusal. The issue is unlikely to be decided becuase of Australian court's willingness to use the parens patriae jurisdiction in medical matters, which renders irrelevant the need to rely on the parent.
For authority on the issue the doctor would need to have already proceeded in reliance on parental consent. Such cases usually run into procedural or evidential problems unless litigated by the minor (against their parents) straight away: how do you show what somebody's level of competence was x years ago? (an interesting recent case on this is Raabe v Brisbane Regional Health Authority [2005] QCA 041)
There are only about a few cases from Australian courts on Gillick and most are quite short. I am thinking Docs v Y, Re Jessica, Re Heather, Minister v AS, and the two Joseph's cases. However, none of these kids were actually found Gillick competent and all used the parens patriae jurisdiction.
Mb99 08:43, 24 April 2006 (UTC)


Should Victoria Gillick really redirect here? Wouldn't a seperate page detailing her life, activities and opinions be relevant? I'm assuming the like existed before merger.FrFintonStack 03:21, 12 December 2006 (UTC)