Can a child, rather than a parent, consent to medical treatment?

Date: Mar 02, 2012
Document Type: Newsletter

As parents we obviously want what is best for our children and we strive to protect them from harm, therefore, it’s not a surprise that parents go to great lengths to ensure the safety of our children. As parents we try to minimise the risks of which our children will be exposed to, and in some instances, our need to look after our children will extend to matters involving health and medical treatment.

The law has recognised that parents who are subject to an order must exercise parental responsibility of their child, but how far does that responsibility extend to? Additional questions may arise to not only the extent of parental responsibility, but also how much input does a parent have in regards to the medical treatment of a child overall? We’re all aware that our responsibilities towards a child ceases to a certain extent, when the child reaches 18 years of age, but in relation to the laws regarding medical treatment of a child, establishing when parental consent is required, and the circumstances when parental rights taper off, are important considerations to be mindful of when dealing with our children.

Can a child consent to medical treatment?

Most Australian jurisdictions provide that a child over the age of 16 can consent to medical treatment, which can be a defence to any criminal or civil proceedings. Both New South Wales and South Australia have statutory provisions that deem it sufficient if a minor gives consent. Under s 49 of the New South Wales, Minors (Property and Contracts) Act, makes an allowance for a child ages 14 and 15 to give consent to treatment:

“(1) Where medical treatment or dental treatment of a minor aged less than sixteen years is carried out with the prior consent of a parent or guardian of the person of the minor, the consent has effect in relation to a claim by the minor for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, the minor were aged twenty-one years or upwards and had authorised the giving of the consent.

(2) Where medical treatment or dental treatment of a minor aged fourteen years or upwards is carried out with the prior consent of the minor, his or her consent has effect in relation to a claim by him or her for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, he or she were aged twenty-one years or upwards.”

It’s interesting to note, that the New South Wales Act does not render ineffective the consent of a child who is younger, instead, the common law looks at whether or not the child is mature enough to make the decision for themselves as was noted in Gillick v West Norfolk and Wisbech Area Health Authority and the DHSS, where Lord Scarman in the House of Lords said:

“The underlying principle of the law was exposed by Blackstone and can be seen to have been acknowledged in case law. It is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision…”

Lord Scarman later noted, that when attempting to answer the question of when a child can consent to medical treatment 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.”

What procedures require court approval?

In circumstances where the court is concerned with the welfare of a child, the relevance of the wishes of the child, will require a determination to be made by the court of the child’s ‘best interests’ as was considered in Marriage of Harrison and Wollard [1995] FLC 92-598, where Fogarty and Kay JJ said:

“The “Gillick-competent” test is helpful by analogy. But where a court is concerned with the welfare of a child no question of “self-determination” by a mature child can arise. In the ultimate, whether by a statute or at common law, whilst the wishes of children are important and should be given real and not token weight the court is still required to determine the matter in the child’s best interests and that may in some circumstances involve the rejecting of the wishes of the child.”

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