In December 2013, the Justice, Law and Order Sector, with support from UN Women, organised a three-day joint training in Fort Portal for health workers, police investigators and public prosecutors on the medical and forensic management of sexual violence. Participants were asked to share their experiences and challenges with regard to handling cases of sexual violence. One participant narrated a story of a mother of two girls aged 14 and 16, who took the girls to a health unit and had the intra-dermal contraceptive device, Norplant, inserted under their skin. The police swung into action when they got wind of what had transpired; the two girls, their mother and the health worker were arrested. The question was what charge would be preferred against each of the persons, individually or collectively.
Aiding and abetting defilement and aggravated defilement? Conspiracy to commit the same?
A not too dissimilar matter was the subject of a famous civil suit.
In 1980, the then Department of Health and Social Security (DHSS), a ministry of the British Government, issued a circular that advised doctors against giving contraceptives to children under the age of 16 without parental consent or knowledge. Ms Victoria Gillick, a mother of 10, including five daughters, went to court seeking a declaration that none of her five daughters aged between 1 and 13 years could be prescribed or advised on birth control until they were 16 years.
She also attempted to prevent the DHSS from distributing the circular.
Ms Gillick’s lawyer argued the act of giving contraceptive advice or treatment was “very close” to the criminal offence of aiding and abetting unlawful sexual intercourse. However, the Judge in his initial ruling against Ms Gillick stated: “I would regard the pill prescribed to the woman as not so much the “instrument for a crime or anything essential to its commission,” but a palliative against the consequences of the crime.”
This matter subsequently went to the House of Lords. The issue here was specifically when children could give consent. In the absence of patient consent to treatment, a doctor could easily be sued or accused of assault or battery. The House of Lords held that in some circumstances, a minor could consent to treatment, and that in these circumstances a parent had no power to veto treatment. Lord Scarman, in his judgment, stated what is now considered as a test of “Gillick competency”.
“As a matter of law, 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 sufficient understanding and intelligence to understand fully what is proposed.”
This ruling means the authority of parents to make decisions for their minor children is not absolute, but diminishes with the child’s evolving maturity.
Today a child deemed “Gillick competent” will be able to prevent his or her parent from viewing their medical records or medical staff making a disclosure of these records unless there is an express consent of the child.
Lord Fraser, in his judgment of the Gillick case, gave out guidelines (Fraser Guidelines) that apply specifically to contraceptive use. It is now lawful for doctors to provide contraceptive advice and treatment without parental consent, provided the following criteria are met;
• The young person will understand the advice given,
• The person is not persuaded to in form their parents,
• The young person is likely to begin, or continue having, sexual intercourse with or without
• Unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to suffer,
• The young person’s best interests require them to receive
contraceptive advice or treatment with or without parental advice.
Lord Scarman, however, stated that it is not enough that the child should understand the nature of the advice which is being given; she must also have a sufficient maturity to understand what is involved. These guidelines apply not only to doctors, but other health workers.
Professionals working with children need to consider how to balance children’s rights and wishes with their responsibility to keep children safe from harm. Underage sexual activity is an indicator of child sexual abuse. In Uganda, sexual activity with a person under the age of 18 is a very serious offence that can attract a death penalty.
However, if a person under the age of 18 refuses to consent to treatment, their parents or the courts can overrule their decision on the grounds that the welfare of the young person is paramount. These are the cases in which the young person is likely to suffer grave and irreversible mental and physical harm. When a parent wants to overrule a child’s decision to refuse treatment, the health workers will apply to the courts for a final decision.