Sometimes children are born with, or diagnosed in youth, with serious health complications, illness or disease. Childhood and youth are also times during which accidents often happen. Sometimes, such illness, disease or accidents, may place a child or young person near or at the end of their life. Who may consent to or refuse health care procedures and treatment, and when, in such circumstances, is very important.
It was explained in the section on consent for minors that:
- generally a child’s parents (or appointed guardians) are the main source of authority for decisions about health care procedures and treatment;
- if a child is mature enough to show sufficient understanding and intelligence in relation to health care procedures and treatment, he or she will be able to make certain decisions for him or herself;
- the Court has an overarching role in ensuring decisions are made in the ‘best interests‘ of the child. It may exercise its parens patrie or welfare jurisdiction to ensure this is the case. The Court also must decide about any ‘special medical procedure’ proposed for a child or young person.
What ‘best interests’ means, as well as issues concerning the refusal of treatment were also covered in relation to general treatment, and briefly in relation to matters that might 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.
These issues are further discussed below in relation to the withholding or withdrawal of treatment at the end stages of life for minors.
In Australia, while a Gillick-competent child is likely able to refuse health care treatment provided it is in his or her best interests to do so, the Court may overrule a refusal that would have grave consequences, place a child’s life at risk, or result in death to the child, on the basis that such refusal would not be in the best interests of the child.
For example see X v The Sydney Children’s Hospitals Network in which a teenage boy close to the age of 18 refused a blood transfusion on religious grounds. The Court held that its jurisdiction is not restricted by the principles of Gillick, and that in the circumstances it was not in the best interests of the boy to refuse treatment (as there was 80% chance of death if blood products were not given during his treatment for cancer). His closeness in age to 18 did not alter that decision.
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.
Note the above outlines the position at law about who can legally make decisions about treatment for children and young people.
It is important to remember that this does not mean that a child, young person or adolescent should not be consulted, or that their condition and options for treatment should not be discussed with them.
The Paediatrics & Child Health Division of The Royal Australasian College of Physicians position statement on Decision-Making at the End of Life in Infants, Children and Adolescents notes:
A child’s ability to participate in decision-making is dependent on their willingness and competency, but lack of competency should not preclude their views being heard or stop them from being able to make some simple choices regarding their care including the planning of their funeral. This allows the child a degree of control and permits them to feel a part of decision-making rather than feeling disempowered or alienated. The competent adolescent should always be included in discussions about their care, unless they expressly request not to be.
References [ + ]
|1.||↑||Re Baby D (No 2)  FC 176 at 195; (2011) 45 Fam LR 313.|
|2.||↑||X v The Sydney Children’s Hospitals Network  NSWCA 320.|
|3.||↑||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.|
|4.||↑||The Royal Australian College of Physicians Paediatrics & Health Division, Decision Making at the End of Life in Infants, Children and Adolescents (2008) p18, available at https://www.racp.edu.au/page/paed-policy.|