Consent – Minors (Children and Young People)

Sick girl and mother

Introduction

When is a person considered a minor (a child/young person) in Australia?

In Australia, the general position is that a person under 18 years is legally regarded as a minor. However NSW and SA have legislation that recognise a child’s ability to consent to medical treatment earlier. 1

South Australia

In South Australia, section 6 of the Consent to Medical Treatment and Palliative Care Act 1995 (SA) provides that a person over 16 years may consent to medical treatment as validly and effectively as an adult.

In addition section 12(b) of the Act permits medical treatment of a child, if the child consents and the administering medical practitioner is of the opinion that the child is capable of understanding the nature,
consequences and risks of the treatment and that the treatment is in the best interest of the child’s health and well-being. The medical practitioner must also seek the written opinion of at least one other medical practitioner who personally examines the child before the treatment is commenced.

NSW

In NSW, section 49 of the Minors (Property and Contracts) Act 1970 recognises consent by a child 14 years or older, and by parents when a child is 16 years or younger, in relation to assault and battery claims about medical or dental treatment.

However, these provisions are concerned with legal protections for doctors and dentists, and do little to clarify the power of a child or young person to give consent. 2 Reference to the common law should therefore be had, as it contains a broader statement about the roles and responsibilities of young people and their parents in making decisions about health care (and has made the provisions of the Act somewhat redundant).

Who can make decisions about medical treatment of minors?

There are special rules about who may consent to the treatment of children and young people, with a focus upon ensuring that their ‘best interests‘ are met.

Parents

Mother and child talking to doctor - Consent
Generally, a child’s parents (or appointed guardians) are the main source of authority for health care procedures and treatment. This authority comes from their duty to maintain and protect the child. 3 Generally the consent of either parent is sufficient authorisation for a doctor or other health care professional to examine and treat a child or young person.

Parental decision making in relation to children is however limited to the extent that any decision regarding consent to, or refusal of, medical treatment or intervention, must be in the child’s best interests. 4 If it is not considered to be so (for example, by the health practitioners treating the child), the matter may be referred to the Courts.

Parents are also not able to consent to treatment made illegal by statute (for example, genital mutilation) or to certain procedures or treatments that are considered ‘special’ and need Court approval. (See below)

The Courts

The Supreme Court in each state/territory has ‘parens patriae’ jurisdiction in relation to minors; and the Family Court has special welfare provisions, that enable them to make decisions about medical treatment/procedures for minors. (Parens patriae means that the Court has the power to act on behalf of a person who cannot act for themselves).

The power of the Courts is superior to that of parents and may be exercised to ensure decisions about treatment are in the ‘best interests’ of a child or young person. There are also some decisions concerning ‘special medical procedures‘ that can only be made by the Court. These generally involve medical procedures or interventions in which:

  • the proposed procedure is invasive, permanent and irreversible;
  • the proposed procedure is non-therapeutic, meaning it is not for the purpose of curing a malfunction or disease;
  • there is a significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or
  • about what are the best interests of a child who cannot consent; and
  • the consequences of a wrong decision are particularly grave.

Examples of ‘special medical procedures’ include (but are not limited to):

  • the sterilisation of a young person with intellectual disabilities; 5
  • administration of experimental non-approved drug treatment; 6
  • treatment for gender identity disorder; 7
  • sex reassignment surgery; 8
  • bone marrow harvest; 9
  • termination of pregnancy; 10
  • indefinite detention, medial treatment and sedation. 11
In NSW the law also requires that some treatments must have the consent of the Guardianship Tribunal. 12 For children under 16, the tribunal must approve:

  • treatment that is intended or is reasonably likely to result in permanent infertility (not being consequent on some other life-saving treatment);
  • any treatment for the purposes of contraception or menstrual regulation declared by the regulations to be a ‘special medical treatment’;
  • vasectomy or tubal occlusion;
  • treatment that involves the administration of a drug of addiction over a period of more than 10 days in any 30 day period;
  • any experimental procedures that do not conform with the National Health and Medical Research Council statement on research.

Older Children

Gillick Competence - Consent Minors
Older children (or rather ‘mature minors’) may have sufficient understanding and intelligence to consent to health care treatment themselves. This is sometimes referred to as ‘Gillick competence’.

However, older children may not be able to refuse treatment needed to save their life or prevent serious harm. The Court may decide that such refusal is not in the best interests of the child, and in some circumstances relevant legislation exists.

Gillick competence, and a child’s right to consent to or refuse health care treatment is further discussed below. The refusal of life-saving treatment is also discussed here.

What does ‘best interests’ mean?

There is not a formal or rigid list of requirements that must be considered when determining what is in the best interests of a child. Circumstances and context will influence any decision that must be made. Each child or young person is an individual, and an objective assessment as to what is appropriate for them is required.
However, the sorts of factors that may be considered to determine a child’s best interests were set out by Chief Justice Nicholson in Re Marion (No 2) 13 and again used by him in Re Alex. 14 The factors include:
  • the particular condition of the child or young person who requires the procedure or treatment;
  • the nature of the procedure or treatment proposed;
  • the reasons why the procedure or treatment be carried out;
  • the alternative course of treatment that are available in relation to the condition;
  • the desirability of and effect of authorising the procedure for treatment proposed rather than available alternatives;
  • the physical effects on the child or young person and the psychological and social implications for the child or young person of authorising or not authorising the proposed procedure or treatment;
  • the nature and degree of any risk to the child or young person of authorising or not authorising the proposed procedure or treatment; and
  • the views (if any) of the guardian(s) of the child or young person, to the proposed procedure or treatment and to any alternative procedure or treatment. 15
Similar considerations have been made in other cases, however the above list is neither rigid, nor exhaustive. For example, other factors that have also taken into account in various cases include risks to the child’s physical and/or psychological and/or emotional health; the faith and views of the child and parents; and the pain, discomfort or distress that a child or young person is  suffering, or would suffer if they have/do not have treatment.

Not one of the factors alone is or could be determinative.

Decision Making by ‘Mature Minors’ (Older children)

‘Gillick Competence’

Girl - teenager - doctor - consent
Prior to the age of majority a child may be competent to give consent to medical treatment in some circumstances.

At common law, the right was established in the English case of Gillick v West Norfolk AHA [1986] AC 112, and so is sometimes referred to as ‘Gillick competence’.  In that case, it was said:

‘…as a matter of law the parental right to determine whether or not their child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.’ 16

In Australia, the above statement was approved by the majority in the High Court case of Marion, 17 as an aside to the central judgment. It was recognised in that case that although ‘lacking the certainty of a fixed age rule, [it] accords with experience and psychology’.

In other words, if a child is mature enough to have ‘sufficient understanding and intelligence’ that enables him/her to fully understand the nature of the proposed procedure or treatment and its gravity and effects, he/she will be able to consent to such treatment.
Teenage cancer patient - signing consent
Note: The Court may be called upon to establish whether a child possesses ‘Gillick-competence’. In doing so, it may consider such things as age, maturity, comprehension of the treatment proposed, its effects and long term consequences, medical expert’s opinions as to the child’s maturity, intelligence and understanding, emotional state. However, much will also ‘depend upon what it is that is proposed in each individual case.’ 18

The Court may also overide a Gillick-competent child’s wishes if it considers that the proposed treatment, or refusal of treatment, is not in the child’s best interests.

Refusal of treatment

refusal

Can a mature child refuse treatment?

In Australia, a Gillick-competent child is likely able to refuse treatment provided it is in his or her best interests to do so. Such refusal may be in disagreeance with his/her parents.

However, a Court may exercise its parens patriae or welfare jurisdiction to overrule a refusal. The Court’s jurisdiction is not restricted by the principles of Gillick. 19 The Court may for example, overrule a refusal that would have grave consequences, place a child’s life at risk, or result in death to the child, as this would not be seen to be in the best interests of the child.

A Court might also find that a child or young person is not in fact competent to refuse a particular treatment in the circumstances.

Can a parent refuse treatment?

Parents may refuse treatment in the course of making treatment choices about their child’s everyday health. For example, they may choose not to administer antibiotics recommended by a general practitioner, or they may choose not to have their child’s broken toe operated upon.

If however, it is believed that the parent is not acting in the best interests of the child, application can be made to the Court to determine the situation.

The Court may again exercise its parens patriae or welfare jurisdiction to overrule a refusal, if a parents refusal of treatment is not seen to be in the best interests of a child. Australian cases that illustrate this include when parents have refused blood products or transfusions upon religious grounds 20 or when parents refused hospitalisation for a child who was extremely ill with anorexia nervosa to the point that her condition was life-threatening 21

Note: In all of the Australian jurisdictions there is legislation authorising the administration of blood transfusions to children without consent where the child is ‘likely to die’ without the transfusion. 22

Emergency

In the case of emergency, when a medical practitioner cannot obtain the consent of a patient or their parent, treatment may be carried out without authorisation.
emergency

Find out more

Notes:

  1. Age of Majority Act 1977 (Vic) s3; Age of Majority (Reduction) Act 1971 (SA), s3; Age of Majority Act 1972 (WA), s5; Age of Majority Act (NT) s4; Law Reform Act 1995 (Qld), s17; Age of Majority Act 1974 (ACT), s5; Minors (Property and Contracts) Act 1970 (NSW), s9; Age of Majority Act 1973 (Tas), s3.
  2. New South Wales Law Reform Commission, Young people and Consent to Health Care, Report No 119 (October, 2008).
  3. The duty arises at both common law and via statute.
  4. Secretary, Deptartment of Health and Community Services (NT) v JWB (‘Marion’s Case’) [1992] 175 CLR 218.
  5. Re: Marion (1992) 175 CLR 218; Re: Katie (1996) FLC 92; Re: Angela [2010] FamCA 98.
  6. Re: Baby A [2008] FamCA 417.
  7. Re: Jamie [2013] FamCAFC 110;
  8. Re: A (a child) (1993) FLC 92-402; Re: Alex [2009] FamCA 1292.
  9. Re: GWW and CMW (1997) FLC 92-748.
  10. Queensland v B [2008] 2 Qd R 562.
  11. Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217.
  12. Children and Young Persons (Care and Protection) Act 1998 (NSW), s 175; Children and Young Persons (Care and Protection) Regulation 2012 (NSW), reg 25
  13. Re Marion No 2 (1992) 17 Fam LR 336 at 451.
  14. Re Alex [2004] FamCA 297.
  15. Re Marion No 2 (1992) 17 Fam LR 336 at 351; Re Alex [2004] FamCA 297 at [202]-[213]; (2004) 31 Fam LR 503 .
  16. Gillick v West Norfolk AHA [1986] AC 112, 188-189 (Lord Scarman).
  17. Marion’s Case (1992) 175 CLR 218 at 237-238.
  18. Re Alex [2004] FamCA 297 at [173].
  19. X v The Sydney Children’s Hospitals Network [2013] NSWCA 320.
  20. For example see Minister for Health v AS & Anor [2004] WAWC 286; Women’s and Children’s Health Network Inc v M, CN [2013] SASC 16.
  21. Director General, NSW Department of Community Services v Y [1999] NSWSC 644.
  22. Children and Young Persons (Care and Protection) Act 1998 (NSW) s174, the Human Tissue Act 1982 (Vic) s24, the Consent to Medical Treatment and Palliative Care Act 1995 (SA) s13(5), the Human Tissue and Transplant Act 1982 (WA) s21, the Transplantation and Anatomy Act 1979 (Qld) s20, Transplantation and Anatomy Act 1978 (ACT) s23, Human Tissue Act 1985 (Tas) s21.