Children and consent

Children and consent

Life threatening emergencies aside, a practitioner must obtain the consent of the patient before undertaking an examination, investigation, procedure or treatment. Failure to obtain consent leaves a practitioner vulnerable to allegations of assault (and in rare cases, a criminal charge of assault). This requirement also applies to the treatment of children.

Author: Avant Learning Centre
31 / 05 / 2016

Life-threatening emergencies aside, a practitioner must obtain the consent of a patient before undertaking an examination, investigation, procedure or treatment. Failure to obtain consent leaves a practitioner vulnerable to allegations of assault (and in rare cases, a criminal charge of assault). This requirement also applies to the treatment of children.

For a child (a person under the age of 18 years), depending on the circumstances, consent to medical treatment may be given by: a parent or guardian, the child and the court.

Parent or guardian

In general, a guardian of a child (usually a parent) has the authority to consent to or refuse medical treatment and procedures, as long as it is in the best interests of the child, unless:

  • the child has the capacity to make decisions themselves (a‘mature minor’ or ‘Gillick competent’ [see The child section below] or
  • the procedure is one for which court authority is required.

Details relating to the proposed treatment must be provided to the parent who is giving the consent. For more information on this refer to the Avant Consent essentials factsheet.

Both parents have authority to consent to treatment for their child, so consent from either parent will generally be sufficient. Even when the parents have legally separated or divorced they each retain responsibility to make decisions in the best interests of the child, unless there is a parenting order of the Family Court that removes a parent’s authority. If parents are separated or divorced it is a good idea to enquire whether there are any parenting orders giving authority to only one parent.

Often doctors and practices can find themselves in the middle of an acrimonious separation where one parent consents to treatment and the other objects. It is important in these circumstances that you communicate with both parents and set clear ground rules to avoid a dispute. This might include involving one or the other parent in any consultation by telephone.

Where parents cannot agree on whether to consent to medical treatment on behalf of their child, a decision may need to be made by a court [see The court section below]. Child welfare authorities generally have protective powers to take legal action to seek court orders where the safety or welfare of a child is an issue. Similarly, the Family Court has the power to make orders where a child’s wellbeing is at risk.

In the case of intellectually disabled children, parents or guardians generally have the capacity to consent to medical treatment on the child’s behalf although, in some circumstances specified in legislation, court approval may be required [see Special medical procedures below].

The child

Age of consent

There is no defined age at which a child can consent to medical treatment.

A child or young person can give consent to treatment when they have achieved a sufficient level of understanding and maturity to enable them to understand fully what is proposed. This is known as ‘Gillick competence’ or the ‘mature minor’ doctrine.

It is the treating medical practitioner’s role to establish that the child or young person has sufficient maturity to consent to the particular treatment under consideration.

The child’s age and their insight into the nature of the treatment and its possible side effects is relevant to consider, as well as the child’s intelligence and general attitude, personality and health. In general, the more risky the procedure, the higher the standard should be to ensure that the child fully understands the nature of the procedure.

If a child is competent to make decisions regarding their own treatment, the consent of the child alone is sufficient and consent of a parent or guardian is not required.

Consent of the mature minor child must be obtained before you can discuss the treatment with their parents or anyone else. It is advisable to discuss with the child the benefits of informing the parents about their condition and proposed treatment.

Disputes between parents and children

Where there is a dispute between a parent and child about medical treatment, provided the child is – in the opinion of the medical practitioner – mature enough to consent, the child’s consent will be sufficient to undertake the procedure (subject to any overriding court order the parents may obtain).

Court orders to authorise treatment

Legislation requires that a court order is obtained to authorise some medical treatments, even if the child and parents consent [see Special medical procedures below]. In other circumstances where medical procedures may be of significant risk, ethically sensitive or disputed, it may be advisable to consider obtaining a court order authorising the treatment, even if a court order is not legally required. In most cases, this will involve treatment at a hospital, so you should always seek the advice of the hospital’s administration and lawyers if considering approaching the court for an order.

 Statutory provisions

There is legislation in New South Wales and South Australia relating to consent and children.

In New South Wales, under the Minors (Property and Contracts) Act 1970 section 49, a medical practitioner who proceeds on the basis of consent of a child aged 14 years and over is protected  from an allegation of assault. A medical practitioner is also protected from an action in assault brought by the child if the treatment was performed on a child under 16 with the consent of the parents. These provisions do not mention the child’s capacity to consent (although the provisions assume that the child has capacity by reason of their age alone). The provisions are confusing and if you have any questions about how the legislation applies to your circumstances, contact Avant for advice on 1800 128 268.

In South Australia, under the Consent to Medical Treatment and Palliative Care Act 1995 (SA), children aged 16 years and over may make decisions about their own medical treatment with the exception of making an advance care directive or appointing an agent to consent to treatment. In these cases, a person must be over the age of 18 to do so.

The court

Special medical procedures

There are certain types of medical procedures commonly described as ‘special medical procedures’ that cannot be performed on a child unless a court (or a tribunal) has authorised the procedure. This includes permanent sterilisation and the second stage of gender re-assignment. Court authorisation is required for these procedures even if the child is Gillick competent and/or the parents or guardians have consented to the treatment.

Evidence required

Evidence must be given to satisfy the court that the proposed special medical procedure is in the best interests of the child. This must include evidence from a relevant expert (whether it is medical, psychological or other) covering:

  • the exact nature and purpose of the proposed medical procedure
  • the particular condition of the child for which the procedure is required
  • the likely long-term physical, social and psychological effects on the child
  • the nature and degree of any risk to the child from the procedure
  • if an alternative and less invasive treatment is available – the reason for recommending the procedure instead of the alternative treatments
  • where the child is capable of making an informed decision, whether the child agrees to the procedure
  • where the child is not capable of making an informed decision, evidence of the current incapacity of the child and evidence that the child is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future.

If you have been asked to perform a special medical procedure and you are unsure about the legality of the procedure, contact Avant for advice on 1800 128 268.

Conflict about the child’s best interests

The court may also give consent to treatment of a child where there is conflict about whether a proposed treatment is in the child’s best interests. This may include conflict between parents or between parents and a hospital or medical practitioner. The Supreme Court in each state and territory has what is called a ‘parens patriae’ jurisdiction to override the decisions of parents and of children if required to protect the best interests of the child. The Family Court has a similar power under the Family Law Act 1975 (Cth).

For more advice, call Avant’s Medico-legal Advisory Service on 1800 128 268.

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