Citizen child: Australian law and children's rights

Historical publication – December 1996

You are in an archived section of the AIFS website. Archived publications may be of interest for historical reasons. Because of their age, they may not reflect current research data or AIFS' current research methodologies.

8. Medical procedures for children

by Loane Skene

Except in an emergency, medical procedures cannot be carried out without consent from the patient or from someone with lawful authority to consent on the patient's behalf. This chapter explains who is entitled to consent to medical procedures for children. It outlines a range of situations: treatment for babies and young children (when the consent of a parent or guardian is generally sufficient unless the treatment may not be in the child's best interests); treatment for older children who seek medical intervention without their parents' knowledge, such as teenage girls seeking contraceptives and abortions; and cases where an older child and the parents disagree about the proposed procedure. Finally, the chapter considers a number of procedures that are unlawful even if consent is given, unless they are authorised by a court. These include invasive procedures such as the sterilisation of intellectually handicapped girls and, in some cases, the withdrawal or withholding of treatment from critically-ill newborn infants.

A parent's right to decide about a child's medical treatment is almost absolute with a very young child and diminishes to a mere freedom to advise as the child grows older and matures. A child, conversely, starts by having no legal right to make medical decisions and gradually acquires greater autonomy or decision-making power until, on reaching the age of majority, the child alone has the legal authority to decide. While the age of majority is 18 years in all States and Territories of Australia, in New South Wales and South Australia a child's capacity to consent to medical treatment is regulated by statute, and children can consent to their own treatment once they are 14 and 16 years, respectively (Section 49 (2) Minors (Property and Contracts) Act 1970 (NSW); Section 6 (1) Consent to Medical and Dental Procedures Act 1985 (SA)).

There is a period, however, when an older child who has not yet reached the age of majority is legally able to consent to at least some procedures without a parent's knowledge or consent, and may consent even if the parents object. What these procedures are, and how old the child must be in order to consent to them, is still not entirely clear in law and much depends on the circumstances of each case. In addition, there is some doubt about the extent to which a child who is mature enough to consent to treatment is also mature enough to refuse it. It appears clear that a court may override the child's refusal if there is a threat to the child's life or health; it is not clear, however, to what extent the parents can override a child's refusal.

Babies and young children

The parents of a baby or a young child are legally entitled to decide what medical treatment their child will or will not have, provided that they act in the child's best interests. This right is based on their guardianship of the child until that child reaches 18 years. Each parent of the child is a guardian and either may consent to or refuse medical treatment (Sections 60E (1), (2), 60F Family Law Act 1975 (Cwlth); Secretary of Health and Department of Health and Community Services v. JWB and 5MB (1992) 175 CLR 257,235 (Marion's case)).

Clause 61 C (1) of the Family Law Reform Bill (No. 1) 1995 carries a similar message, stating that each parent of a child under 18 years has parental responsibility for the child, even if the parents have separated or remarried, unless there is a court order to the contrary. A 'parenting order' made under Clause 61D of the same Bill could confer parental responsibility on a person other than a parent, but it would not take away,parental responsibility from a parent unless this was stated in the order or was necessary to give effect to the order.

In the great majority of cases, the consent of either parent is sufficient authority for a doctor or other health professional to undertake on a child a clinically indicated medical procedure, from a routine examination to complex surgery. Parents are also entitled to refuse treatment that a doctor recommends, or to choose alternative treatment. However, this entitlement is subject to court intervention if the parent's decision seems not to be in the child's best interests, as explained below.

Information to be given to parents

When parents are asked to consent to treatment for their child, they are entitled to be given sufficient information to make an informed choice about whether to agree to that treatment. This includes information about the child's condition and prognosis, the options for treatment and their advantages and disadvantages, and the doctor's recommendation. The parents should be told the nature, duration and purpose of the proposed intervention and how it will be conducted. In particular, the parents are entitled to know any 'material' risks of the procedure.

The type of risk that is material in a given case has been considered in a number of recent court cases in Australia involving adult patients, and the principles would seem to be the same when parents are asked to consent to treatment for their child. In each of these cases, the patients alleged that their doctor had been negligent in failing to disclose the risks of the proposed treatment before they agreed to it. The decisions of the judges in those cases, especially the judges of the High Court (which is the ultimate appellate court), now provide legal guidance on the information that must be given to patients about proposed medical procedures. This court-made law is supplemented by guidelines for medical practitioners published by the National Health and Medical Research Council (NHMRC 1993).

Put simply, a risk is material and so must be mentioned to a patient if:

' ... in the circumstances of the particular case, a reasonable [or ordinary] person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.' (Rogers v. Whitaker (1992) 109 ALR 625,634)

It is the doctor's responsibility to decide whether a risk is material in this sense and must therefore be mentioned. The doctor will need to consider 'the nature of the matter to be disclosed; the nature of the treatment; the desire of the patient for information; the temperament and health of the patient; and the general surrounding circumstances' (F v. R (1983) 33 SASR 189, 192, quoted in Rogers v. Whitaker, 632).

The National Health and Medical Research guidelines (NHMRC 1993) reflect the law as stated by the High Court and give examples of information that should generally be given to patients. Paragraph 9, for example, states that: 'Doctors should normally discuss the following information with their patients:

  • the possible or likely nature of the illness or disease;
  • the proposed approach to  investigation, diagnosis and treatment
    • what the proposed approach entails
    • the expected benefits
    • common side effects and material risks of any intervention
    • whether the intervention is conventional or experimental
    • who will undertake the intervention;
  • other options for investigation, diagnosis and treatment;
  • the degree of uncertainty of any diagnosis arrived at;
  • the likely consequences of not choosing the proposed diagnostic procedure or treatment, or of not having any procedure or treatment at all;
  • any significant long term physical, emotional, mental, social, sexual, or other outcome which may be associated with a proposed intervention;
  • the time involved;
  • the costs involved, including out of pocket costs.'

Paragraph 11  states that: 'The way the doctor gives information should help a patient understand the illness, management options, and the reasons for any intervention. It may sometimes be helpful to convey information in more than one session. The doctor should:

  • communicate information and opinions in a form the patient should be able to  understand;
  • allow the patient sufficient time to make a decision. The patient should be encouraged to reflect on opinions, ask more questions, consult with the family, a friend or adviser.
    The patient should be assisted in seeking other medical opinion where this is requested;
  • repeat key information to help the patient understand and remember it;
  • give written information or use diagrams, where appropriate, in addition to talking to the patient;
  • pay careful attention to the patient's responses to help identify what has or has not been understood;
  • use a competent interpreter when the patient is not fluent in English.

It follows from these general principles that doctors should discuss with parents any serious risks of a procedure that is proposed for their child, such as the risk of death, brain damage or paralysis, even if the risk is fairly remote, because an ordinary person in the child's position would want to know about such a risk when deciding about the procedure. Similarly, a less serious but common risk, like stiffness of a joint or. infection, might also need to be mentioned if an ordinary person would be likely to be influenced by it.

There are many other factors that may also be relevant in deciding whether a risk is material. If a patient is critically ill, for example, and the proposed procedure appears to be clearly for the patient's benefit, the patient may be less influenced by potential risks and there may therefore be less need to mention them. Conversely, if a procedure is essentially cosmetic, or could easily be deferred while the patient considers more fully what it entails, then risks may more readily be found to be material and requiring mention. If patients ask questions, they are entitled to be told the truth.

Parents cannot consent to some procedures

There are some procedures to which parents cannot consent, even if the parents and the child's doctors believe that the proposed procedure is in the child's best interests. This is objectively assessed by appropriately qualified third parties (Marion's case, p.240); it is not determined by what the parents believe to be the best outcome for the child. Parents, for example, 'do not have the right to have a child's foot cut off so that he or she could earn money begging, and it is clear that a parent has no right to take the life of a child' (Marion's case, p.240).

Non-therapeutic sterilisation

The primary example of a procedure to which parents are not legally entitled to consent is a non-therapeutic sterilisation of an intellectually handicapped girl in order to avoid pregnancy and problems associated with menstruation. The High Court of Australia stated clearly in Marion's case, and more recently in P v. P [1994] ALJR 449, that parental consent is not sufficient in such a case; approval must also be sought from the Family Court (the procedure is set out in Order 23B, Family Law Rules). The reasons for this requirement include the 'varying kinds and consequences of intellectual disability ... (most intellectually disabled people are borderline to mildly disabled) ... [the danger of] an underestimation of a person's ability; ... the irreversible and major surgery ... the significant risk of making the wrong decision ... and because the consequences of a wrong decision are particularly grave' (Marion's case, pp.238-9).

Marion was a 14-year-old intellectually handicapped girl whose parents applied to the Northern Territory Supreme Court for an order authorising the performance of a hysterectomy and ovariectomy on her, or a declaration that they could lawfully consent to those procedures. Marion was severely deaf, epileptic and had behavioural problems. She had started menstruating and was incapable of caring for herself physically. She could not understand the nature and implications of sexuality, pregnancy or motherhood. Her parents believed, on the basis of medical advice, that it was in her best interests to have a hysterectomy to prevent menstruation and pregnancy, and an ovariectomy to stabilise hormonal fluxes and control psychological and behavioural problems. The issue was whether Marion's parents could consent to these operations as they could to other medical procedures.

The Court held that they could not consent to such procedures and that non-therapeutic sterilisation required court approval. This means that, if a child's parents are in favour of a sterilisation procedure and the court agrees, the court will declare that the procedure is in the child's best interests, and the parents may then authorise it. If, on the other hand, the parents are in favour but the court is not, the court will declare that the procedure is not in the child's best interests and that it may not be undertaken. If necessary, the court may grant an injunction preventing the procedure. Conversely, if the parents are opposed to a proposed sterilisation procedure but the court finds it to be in the child's best interests, the court could declare that to be the case and appoint someone else to consent. The ultimate outcome in Marion's case, was that she was sterilised on the basis that it was in the interests of her longterm welfare (Re Marion (No. 2) (1994) FLC 92-448).

It should be emphasised that, in Marion's case, the majority judges of the High Court limited their decision to non-therapeutic sterilisation. This case was distinguished from 'sterilisation which is a by-product of surgery appropriately carried out to treat some malfunction or disease' (Marion's case, p.250). In the latter case, the parents could consent for their incompetent child as with any other treatment. However, the proposed sterilisation must be a last resort after all other options have been considered. If the court is not satisfied that the procedure is in the child's best interests, it will not be permitted, regardless of the parents' wishes. Thus, although the majority judges stated in Marion's case that 'the best interests of the child will ordinarily coincide with the wishes of the parents', that is not always so.

This latter point is illustrated by another case in which the Family Court in Brisbane refused to allow an intellectually disabled girl to be sterilised (L and GM v. MM; The Director-General, Department of Family Services and Aboriginal and Islander Affairs (1994) FLC 92-449 (Sarah's case)). Sarah was 17 years old, physically and intellectually disabled, and epileptic and unable to communicate. She lived in a disabled persons' ward in a country hospital and her parents were not involved in her daily care. Sarah's parents applied for a court declaration that it was in Sarah's best interests to remove her uterus and cervix (but not ovaries) to avoid pregnancy and menstrual pain and to assist in hygiene. However, the Court was not persuaded. Her teacher said that the 'extra effort [of assisting with menstruation] is inconsequential' and it did not affect her care. Although 'all concerned ... evidence horror at the prospect of a pregnancy for Sarah', sterilisation would not prevent sexual abuse; indeed the risk might be increased if it was known that she could not conceive. Further, the parents' argument that Sarah would be likely to receive better care if she was easier to care for, was not supported by the evidence.

Withdrawal of medical treatment

Another situation in which a parent's decision may not be sufficient authority for a doctor is the withdrawal of treatment from a critically ill or severely disabled child, or the non-administration of lifesustaining measures. With adult patients, doctors are protected from criminal and civil liability if the patient, being competent and fully informed, directs that treatment should not be given, or should be withdrawn. However, this is not the case where the patient is a child and the only effective protection for a doctor who withholds or withdraws treatment may be a court order.

The extent of a parent's authority to make medical decisions for a critically-ill newborn infant is problematic. The Victorian DeputyCoroner said during her findings in the Baby M inquest (1991, Record of Investigation into Death, Case No.3149/89), that the accepted Australian standard is for decisions relating to the management of children with gross congenital malformations to be taken by parents and physicians together. However, that statement would seem to be too broad, and is inconsistent with principles stated in other cases.

Baby M had been born with a very severe form of spina bifida. She had a brain abnormality, hydrocephalus and dislocated hips and knees, with her hips held in a constant position over her chest. The doctors believed that regardless of the treatment she might be given, there was a grave risk the child would not survive. If she did survive, her quality of life was likely to be so poor that one might question whether she would want to live such a life. Given this prognosis, her doctors, in consultation with the parents and their Roman Catholic spiritual advisers, decided that she should be given 'conservative treatment' - an open cot, food by mouth on demand, and pain-killers and sedatives to alleviate pain and distress.

Members of the Right to life Association heard of the baby's condition from a relative who said that the baby was being sedated and might starve, and called the police. Police officers and independent medical specialists who examined the baby were satisfied that her care . was appropriate. Baby M died after 12 days and an inquest was conducted. The Coroner's decision ultimately vindicated the parents, the doctors and the hospital and roundly criticised the actions of the Right to life Association. It does not, however, bind courts or another coroner who is faced with a similar case. While compassionate and just, the decision seems at odds with a number of the recent decisions of the English Court of Appeal regarding appropriate treatment for a severely handicapped baby, which have generally ordered that the child be treated. In the absence of any binding law in Australia, such decisions would generally be followed by Australian courts.

In Re B (a minor) {wardship: medical treatment} (1981) [1990] 3 All ER 92 7, for example, the English Court of Appeal authorised treatment to remove an intestinal blockage in a Down's syndrome baby, because the prognosis was uncertain and the prospect of 'the child living for 20 or 30 years as a mongoloid' was not so 'demonstrably awful' that the relatively simple operation should not be performed to save her life.

In Re C (a minor) {wardship: medical treatment} [1989] 2 All ER 782, however, the English Court of Appeal was prepared to accept the advice of the specialist paediatrician who examined the severely handicapped infant, as to the best treatment for the baby's distress. 'C' was born with severe, irreparable brain damage (in addition to severe hydrocephalus, the brain structure itself was poorly formed). She was paralysed in arms and legs, blind, deaf, unresponsive to her environment and terminally ill. She was given shunt surgery for hydrocephalus to prevent her head becoming so enlarged that nursing would become impossible, but there was no prospect of it improving her overall health. The Court accepted that the goal of treatment should be to 'ease the suffering of C rather than to achieve a short prolongation of her life'.

In a later case, Re] (a minor) {wardship: medical treatment} [1990] All ER 930, the English Court of Appeal again considered the child's likely quality of life in deciding whether a severely handicapped child should be treated. In this case, the prognosis was clear from the child's medical condition at the time. The baby had severe and permanent brain damage due to a shortage of oxygen and impaired blood supply during birth. He was epileptic and likely to develop serious spastic quadriplegia (paralysis of both arms and legs), to be blind and deaf, and to be unlikely to learn to speak or to develop even limited intellectual abilities. His life expectancy was at most into the late teens, and the proposed medical procedure (reventilation) was itself painful. The three judges in the case unanimously decided that it was in the child's best interests to withhold ventilation if he stopped breathing. It should be emphasised, however, that the Court did not authorise the withdrawal of life support treatment; it ruled that if the baby stopped breathing, he need not be resuscitated. The reasoning in the cases of Re B, Re C, and Re] was approved by the House of Lords in Airedale National Health Service Trust v. Bland [1993] 1 All ER 821 (Bland's case).

It seems, therefore, that parents are not legally entitled to consent to the withdrawal or withholding of life-sustaining treatment from a congenitally disabled or critically-ill child. There are, however, decisions that they may take for a dying child with the support of medical advisers. The administration of increasing doses of sedatives and painkillers to relieve pain, for example, is lawful so long as its purpose is to relieve pain and not to cause or accelerate death. Parents would normally be involved in making such a decision, and some hospitals try to spare the parents the full responsibility of the final decision by making it a joint one between doctors and parents.

Participation of children in medical research

The reason why parents alone cannot legally consent to procedures such as non-therapeutic sterilisation or the withdrawal of treatment from a severely disabled newborn infant, is that these procedures may not be in the child's best interests, and parental authority extends only to procedures that are for the child's benefit. This raises a problem in relation to the involvement of children in medical research, where the purpose is not to treat the child but to gain information about a particular medical condition, the effectiveness of a new drug and the like. If there is no benefit to the child (as there might be in a therapeutic drug trial}, it would seem, on general principles, that the parents would not be entitled to consent to the child participating even if there was no significant risk. This would, however, prevent much useful research from being undertaken that might be of benefit to the community as a whole.

The National Health and Medical Research Council has published guidelines on research on children (NHMRC 1987). These state that 'scientific research is essential to advance knowledge of all aspects of childhood diseases' and that, while 'some programs may offer direct benefit to the individual child, ... others may have a broad community purpose'. Ethics committees are instructed to take special care in 'protecting the rights and welfare of children involved in research procedures' and in 'determining the acceptability of the risk/benefit relationship of any research study conducted'. In the case of therapeutic research (where the procedure may be of some benefit to the child), 'it is essential to weigh the risk of the proposed research against customary therapeutic measures and the natural hazards of the disease or condition'. In the case of non-therapeutic research, 'the risk to the child should be so minimal as to be little more than the risks run in everyday life'. Risks in this context include 'the risk of causing physical disturbance, discomfort, anxiety, pain or psychological disturbance to the child or the parents rather than the risk of serious harm, which would be unacceptable'. Consent must be obtained from the parents or guardian in all but exceptional cases (such as emergencies), and also from the child 'where he or she is of sufficient maturity and intelligence to make this practicable'.

By acknowledging that children may be involved in research that is not for their direct benefit, these guidelines seem to be inconsistent with general legal principles. However, if the risk to the child is minimal and the potential benefit of the research is significant, it would appear ethically acceptable for the child to be involved and it is unlikely that the law would prevent it.

Child's 'best interests': limits on parental authority

It is apparent from the sorts of cases mentioned above that, although parents are generally able to consent to treatment for their child, parental authority is not absolute. Parents are required to act in the child's best interests and, if there is any doubt about whether a parent's decision accords with this, then any person who is concerned about the child's welfare or treatment may apply to a court to intervene. The state acts as the protector of children in the interests of society. This is called the parens patriae jurisdiction of the court and springs from the direct responsibility of the Crown to look after those who are unable to care for themselves.

The Family Court has a broad jurisdiction over the welfare of children, whereas the Supreme Courts have wardship jurisdiction, both at common law and under child welfare legislation. If a parent or guardian appears to be not acting in a child's best interests, the state may direct that treatment be given. This may be done by making the child a Ward of the State or by placing the child under the care of a state department of Health and Community Services. The DirectorGeneral of the Department then acts in place of the parents and exercises similar rights and responsibilities, which include the right to consent to surgical operations or anaesthesia. The State Supreme Court need not, however, make the child a ward before, or as a consequence of, exercising its parens patriae jurisdiction (Seymour 1992).

An order to require the provision of medical treatment for a child may be made by a State Supreme Court in its wardship jurisdiction, or by the Family Court of Australia in its welfare jurisdiction. In some States and Territories, guardianship boards may authorise treatment or appoint a guardian to authorise treatment. Even in Victoria, where the guardianship legislation does not apply to people under the age of 18 years, the Public Advocate has power to 'make representations on behalf of or act for a person with a disability', including people in an institution. These powers include acting for children (Section 16 (1) (e), (0 Guardianship and Administration Board Act 1986 (Vic)) both as a class and individually. Thus, in a case where parents refused to consent to surgery for their ll-year-old son who suffered from a congenital heart abnormality (the main blood vessels to the heart were transposed), the Public Advocate was entitled to apply to a court on the child's behalf and to be appointed guardian for the purpose of consenting to the operation (Re Michael (1994) FLC 92-471).

Unlike most cases, the court's jurisdiction in these situations is not strictly adversarial and anyone can apply to a court on behalf of a child where the child's wellbeing is at question. Thus, even if an applicant lacks standing to appear before the court (for example, because the person is not directly involved and has no official position authorising them to intervene), the court may still proceed to consider the case and to make an appropriate order if that is in the best interests of the child (as in Re Michael).

Lawful treatment without parental consent

If an emergency arises and there is an imminent risk of death or serious injury to a child, doctors may do whatever they consider to be necessary to avert that risk without seeking consent from anyone. This is the same principle that applies to emergency treatment for adults. Further, all States and Territories have legislation that authorises doctors to give children blood transfusions, even if the parents object, where the procedure is necessary to save the child's life. Section 24 of the Human Tissue Act 1982 (Vie), for example, states that parents are deemed to have consented to a blood transfusion if a doctor believed that it was 'a reasonable and proper treatment for the condition from which the child was suffering; and that without a blood transfusion the child was likely to die'. The doctor's opinion must be supported by a second medical opinion.

In New South Wales, the grounds for giving a blood transfusion are wider, including not only cases where there is a threat to the child's life, but also where a transfusion is needed to prevent serious damage to the child's health (Section 20A Children (Care and Protection) Act 1987 (NSW)). The authority to treat is not limited to blood transfusions but extends to medical and dental treatment generally. It is for the doctor to decide whether the treatment is necessary to save the child's life or to prevent serious damage to the child's health, and the test is not one of absolute necessity; the fact that the medical practitioner knows that without the treatment there is a small chance the child will survive and escape serious harm, does not mean that it is not necessary treatment for the purposes of the Section (Birkett v. Director General of Family and Community Services, Supreme Court of New South Wales, 12-13 August 1993, No.3161 of 1991).

Where a proposed blood transfusion or other medical treatment falls within the legislative provisions, it can be done directly. It is not necessary to apply for a court order, as it was before legislation such as that in New South Wales and Victoria was enacted. However, in some cases, court applications are still made. These cases include those in which the risk falls short of threatening the child's life, or the risk to the child's health is appreciable without being serious. Also, even in a case where the doctor may lawfully treat a child against the parents' wishes, the doctor may choose to obtain a court order in order to preserve the doctor-patient relationship. In cases not covered by legislation, the court will make an order for the child to be made a Ward of Court, or appoint someone to consent to the treatment if that is considered to be in the best interests of the child (Dalton v. Skuthorpe, Supreme Court of New South Wales, 17 November 1989; Marchant v. Finney, Supreme Court of New South Wales, 31 July 1992, No.3599 of1992).

A child who needs immediate treatment for mental illness could be detained and treated as an involuntary patient under mental health legislation in the same way as an adult. In Victoria, for example, the five criteria for detention (which must all be satisfied) are: that the person appears to be mentally ill; that the illness requires immediate treatment or care and that treatment or care can be obtained by admission to and detention in a psychiatric in-patient service; that the person should be admitted and detained for that person's health or safety or to protect members of the public; that the person has refused or is unable to consent to the necessary treatment or care for the mental illness; and that the person cannot receive adequate care for the mental illness in a manner less restrictive of that person's freedom of decision and action (Section 8 (1) Mental Health Act 1986 (Vic)). The procedure is initiated by a Request form signed by any adult over 18 years, which may include a relative, and a Recommendation form by a medical practitioner following examination of the person.

Parents not married, not available or disagree

If a child's parents are not married to each other, they still generally have the same rights of guardianship as married people unless those rights have been removed by a court. This means that either parent can consent to treatment or refuse it, provided that they are acting in the child's best interests. If a child's parents, or one or more guardians, disagree about whether the child should undertake any proposed procedure, the doctor should, if possible, defer the treatment until the doctor or guardian can approach a court for guidance. If the case is life-threatening, or the failure to operate would seriously affect the health and wellbeing of the child, treatment could be given in .the absence of a court order under the Emergency Doctrine, or on the basis of consent from the consenting parent or guardian.

Parents separated

If a child's parents are separated, the consent of the custodial parent or the parent with whom the child is living at the time will generally be sufficient authority, although it is possible that the custodial parent may be required by the custody order to seek the consent of, or to notify, the other parent of procedures affecting the child (either before treatment or afterwards). Generally, however, health professionals would not be expected to inquire into or to check such details unless the proposed treatment was serious or contentious.

Step-parents

If a child's parents have remarried, the child will have step-parents who may also be entitled to decide, or to participate in deciding, about the child's treatment. However, health professionals may not generally assume that a step-parent is legally entitled to agree to treatment, and if treatment is serious or contentious, the consent of both parents should be sought.

Child not living with parents

Even if a child is not living with his or her parents, the parents are still legally entitled to decide about the child's treatment unless their rights have been removed by a court order. For example, parents can decide about treatment for an intellectually disabled child who is living in residential care, although the carers could also consent to treatment, particularly if the treatment was minor or routine.

Guardian other than parent

If a child has a guardian other than the parents, the guardian has the same rights as a parent in consenting to, or refusing, treatment. Similarly, if a child is in the temporary care of someone else with the parents' authority, such as a babysitter or school teacher, that person could also consent to treatment in the same way as the parents if the treatment was needed immediately or was minor, such as first aid treatment. However, in more serious cases requiring medical intervention, the attending doctor should wait until the child's parents can be contacted or obtain a court authority to treat the child unless immediate treatment is required.

Guardianship legislation

Some States and Territories have guardianship legislation, which enables a guardian to be appointed to make decisions for people who cannot decide for themselves because of a disability. In Victoria, that legislation applies only to people over the age of 18 years, but in New South Wales and South Australia, it applies to people over the age of 16 years. In those States and Territories where the guardianship legislation covers people who are legally minors (over 16 but under 18 years), the provisions of the Family Law Act prevail if they are inconsistent with the State or Territory legislation.

This may be important in situations where parents want to have a daughter sterilised. Section 35 (1) of the Guardianship Act 1987 (NSW) provides that treatment involving sterilisation can be carried out only for the purpose of saving a patient's life or preventing serious damage to the patient's health. Part VII of the Family Law Act 1975, on the other hand, permits the Family Court to authorise medical treatment, including sterilisation, where it is necessary and in the patient's best interests. The High Court of Australia recently held that, in such a case, the Family Law Act, which is a federal statute, prevails over the State or Territory act to the extent that they are inconsistent with it, so that the test for determining whether a sterilisation procedure should be undertaken is that it is in the 'best interests of the child' (P v. P).

Intervention by other interested adults

Any adult person who is concerned about the welfare of a child, or the treatment or lack of treatment of a child, may apply to a court under its parens patriae jurisdiction (or, in some States and Territories, a guardianship board) to make an order concerning treatment, or to appoint a guardian to make decisions about the child's care or treatment. The person who applies may be a guardian, custodian, access person, person with whom the child lives, relative, doctor or nurse, or just a concerned individual. The approach may be made directly to the Court or, alternatively, to a government department or official.

Child abuse

All States and Territories but Western Australia have legislation under child welfare acts or their equivalent (except Queensland, where it is under Section 76K of the Health Act 1937) requiring people such as health professionals and teachers to notify a government department if they believe that a child has been abused. Such children may be detained for observation, assessment and treatment without parental consent if there is a reasonable suspicion that one or both parents may have abused the child or the child has been the subject of an offence. The legislation also protects people who report suspected child abuse from any legal repercussions.

Older children: who consents?

As noted earlier, a parent's right to decide about medical procedures for a child ceases when the child reaches the age of majority. After that age, children are legally entitled to make their own decisions and parents have no legal authority to countermand them. However, as children grow up, they gradually acquire the right to make their own decisions about at least some procedures and, when that happens, the child's consent is generally sufficient authority for the procedure to be undertaken. In such cases it is not necessary to contact the child's parents and the child is entitled to the same confidentiality of medical information as an adult patient.

Child consents, parents not involved

There are a number of reasons why there has been increasing judicial, and in New South Wales and South Australia legislative, recognition of the right of older children to make their own medical decisions. Children are becoming physically mature earlier than in the past and have increasing financial independence. As a result, they are seeking to make their own medical decisions, just as they make decisions in other areas of their lives. Children's rights have also been recognised as part of the general human rights movement, especially with the development of the United Nations Convention on the Rights of the Child (the Convention) which Australia ratified in 1990 but has not implemented by legislation.

Many of the Articles of the Convention are relevant to medical procedures for children, such as the principle that: 'In all actions concerning children ... the best interests of the child shall be a primary consideration' (Article 3 (1)); the requirement that the child's views, where the child is capable of forming them, must be taken into account (Article 12); and the acknowledgment of the right of a mentally or physically disabled child to 'enjoy a full and decent life in conditions that ensure dignity, promote self-reliance, and facilitate the child's active participation in the community' (Article 23 (1)).

Another reason for allowing children to make their own medical decisions is a concern that they may be deprived of necessary or desirable treatment if parental consent is required and their parents withhold that consent. However, although doctors may proceed without consent in an emergency, or if a court order is obtained, there are conditions for which children may not seek treatment if they cannot do so without their parents' knowledge. Such disorders include, for example, eating disorders and sexually transmitted diseases.

Simple and more serious procedures

The age at which a child is sufficiently mature to consent independently to treatment depends not only on the age and maturity of the child, but also on the type of procedure in question. A relatively young child, for example, even a child of only seven or eight years, could consent to simple, non-invasive procedures, such as examination of a sore throat.

The rationale for this could be that the child's parents have given an implied consent for appropriate procedures by making the appointment for the child to attend; but equally, it could be that the child is able to understand the nature and purpose of the procedure.

If the procedure is more serious than a simple examination or the like, the child must be older before being able to consent, but there are few clear rules. In New South Wales and South Australia, children of 14 and 16 years respectively have a statutory right to consent to their own treatment (Section 49 (2) Minors (Property and Contracts) Act 1970 (NSW); Section 6 (1) Consent to Medical and Dental Procedures Act 1985 (SA)). In other States and Territories, children in this age bracket have a common law right to consent to most types of treatment. Also, throughout Australia, children younger than 16 or even 14 years can consent to many procedures if they are considered to be sufficiently mature. This right was recognised by the majority judges of the High Court in Marion's case, when they approved the following statement of Lord Scarman, in a case heard by the House of Lords in England: 'A minor is ... capable of giving informed consent when he or she "achieves- a sufficient understanding and intelligence to enable him or her to understand fully what is proposed" , (Gillick v. West Norfolk AHA [1986] AC 112, 189, quoted in Marion's case, p.237).

In Gillick v. West Norfolk (Gillick case), this principle was the basis for the House of Lords' decision that a girl under the age of 16 years (the statutory age for consenting to medical treatment in England) was legally entitled to be given contraceptive advice without her parents' knowledge or consent if she was sufficiently mature to 'understand fully what is proposed'. In Marion's case, the majority judges said that, 'This approach, though lacking the certainty of a fixed age rule, accords with experience and psychology', referring to the psychological model developed by Piaget which suggested that 'the capacity to make an intelligent choice, involving the ability to consider different options and consequences, generally appears in a child somewhere between the ages of eleven and fourteen' though it might be even earlier (Marion's case, pp.237-8).

The capacity of children below the age of 18 years to consent to medical procedures independently of their parents is recognised by the Medicare system. If a patient is over 14 years, the doctor may bulk-bill Medicare for the consultation, with or without advising the child's parents. A separate Medicare card may be issued to a patient over 15 years.

Before acting on the consent of a child, however, a doctor must be satisfied that the child has 'sufficient understanding and intelligence to understand fully what is proposed'. This requires an assessment of the child's general maturity and level of understanding. If a child is socially independent of the parents, living alone and self-supporting, it is more likely that the child will be legally entitled to consent. The doctor would then be obliged not to inform the child's parents about the child's condition or the procedures undertaken. The more serious or invasive the procedure, the more carefully the doctor should assess the child's level of understanding.

Some writers have commented that doctors are more likely to assess as competent a child who agrees with the doctor's recommendation. Priscilla Alderson (1990) suggests that: 'when children arrive at the same decision as adults, wise maturity may look like compliance or dependence. Conversely, children's dissent may be seen as immature folly' (p.100). Professor David Lanham has remarked that: There is a wide gulf between the capacity to accept life-saving treatment and the capacity to refuse it.: He continues by arguing that 'the decision of a young child to refuse treatment which prolongs a painful and incurable condition should be regarded as a competent one' (Lanham 1993, p.106), but this matter has not been considered by an Australian court.

It may be noted that in the Gillick case, one judge said that a minor must not only understand the proposed procedure to make it lawful for the doctor to act on the consent alone, but the procedure must also be in her best interests (Gillick v. West Norfolk, p.174, Lord Fraser)j this appears to mean her general welfare, rather than her medical interests. Such a requirement would obviously limit the capacity of a mature minor to make her own decisions, and it is doubtful that it represents the law in most Australian jurisdictions. The South Australian legislation, however, does include a requirement that a minor must not only understand the procedure in order to consent to it, but that it must also be in the minor's 'best interests' (Section 6 (2) (b) Consent for Medical & Dental Procedures Act 1965 (SA)).

In any event, courts are likely to take a rigorous view when assessing the competence of a minor who refuses treatment recommended by a doctor. In Re E (a minor) [1993] 1 FLR 386, an English judge ordered that a 15-year-old leukemia patient, who was a Jehovah's Witness, should be given a blood transfusion despite his refusal (and the refusal of his parents). The judge ruled that although the child was 'obviously of sufficient intelligence to be capable of making decisions about his wellbeing, there are still a range of decisions the full implications of which ... [he] was still insufficiently mature to grasp'. Thus, although the child said 'he would refuse well knowing he may die as a result, he [did] not have any sufficient comprehension of the pain he [had] yet to suffer, of the fear that he will be undergoing, of the distress not only occasioned by that fear but also - and importantly - the distress he will inevitably suffer as he, a loving son, helplessly watches his parents' and his family's distress'. The judge 'did not judge it right to probe with him whether or not he knew how frightening it would be'.

Whether the Court decided the case on the basis that 'the first and paramount consideration ... [is] the welfare of [the patient)', a principle also accepted in this case, or on the basis that the minor lacks the capacity to refuse treatment, the result is the same: his or her refusal is overridden by the court. This would not be the case with a competent adult.

Complex or contentious procedures

Neither the Gillick case nor Marion's case considered specifically the issues that may arise when a 'mature minor' seeks complex or contentious procedures. What is a doctor's position, for example, if a mature 15-year-old girl wants to have an abortion (assuming it is otherwise lawful), or to have cosmetic surgery? The law is not clear but it would appear, according to the general principles stated above, that if after carefully explaining the procedure the doctor is satisfied that the girl is sufficiently mature to understand what is involved, then the treatment would be lawful on the basis of her consent alone. In both cases, however, the doctor would generally be well advised to try to persuade the girl to inform her parents, and to obtain their consent as well. Then, if a question later arose about whether the girl was mature enough to consent, the doctor would be protected by the parents' consent and thus be in a better position legally if he or she were sued for operating without adequate consent.

Without parental consent, the doctor would have to rely on the Gillick principle that a mature minor may consent if she understands fully what is proposed (and possibly that the procedure is also in her best interests). The Gillick case concerned the provision of contraceptives, a non-invasive procedure. If the principle of the mature minor were to be applied to more serious treatment, the onus would be on the doctor to show that he or she believed the young person was mature enough to consent. If the young person were less mature, or the treatment more severe, the doctor would bear a greater onus in assessing the level of maturity. However, the Gillick principle has not been applied in such serious cases in Australia.

It is conceivable that a doctor who is alleged to have acted on inadequate authority might rely on a defence of necessity. One writer expressed this as 'the moral advantage of maintaining confidentiality in the doctor-patient relationship outweighing that of adhering strictly to the law' (Mason 1989, pAS). The Law Reform Commission of Western Australia (WALRC), noting that doctors are prepared to treat patients under the age of 16 years without the consent of their parents, said that: 'Some doctors feel that it would sometimes be irresponsible to refuse to treat children who had demonstrated their maturity by seeking medical advice independently' (WALRC 1988, pA3). Again, these defences have not been tested and one cannot predict whether such a defence would be successful. However, whether the doctor's defence in treating a minor without parental consent is that of necessity or that the child was mature enough to consent, the doctor would also have to believe that the treatment was in the young person's best interests.

If a girl seeking an abortion refuses to tell her parents, the doctor may be justified in breaching confidentiality and informing the parents directly if there is a real risk to her health or wellbeing. However, there is no direct authority on this point and a doctor who decides that the parents should be told should obviously proceed very carefully and should inform the girl first. Likewise, the doctor could apply for a court order authorising the abortion, but it is unlikely that an order would be made without first notifying the girl's parents.

If the parents refuse consent to a proposed abortion, a court may decide whether it is lawful for an abortion to be undertaken. In Victoria and New South Wales, this would require a finding that the abortion is 'necessary to preserve the woman from a serious danger to her life or her physical or mental health' and that, in the circumstances, the danger of the operation is not out of proportion to the danger to be averted (R v. Davidson [1969] VR 667, the 'Menhennit Rules'). This danger to the woman's life or health has been interpreted to include 'any economic, social or medical ground' to believe that there is such a danger (R v. Wald (1971) 3 NSWDCR 25). If the abortion meets these criteria, the court may declare that it is lawful even if the parents object, and that declaration is sufficient authority for the operation to be performed.

An example of the court overriding parental objection in such a case is found in K's case (K v. Minister for Youth and Community Services [1982] 1 NSWLR 311), in which the guardian of a 15-year-old girl refused consent for an abortion which she and her mother wanted. The girl was a Ward of Court and, under the relevant legislation, the consent of the Minister of Youth and Community Services was necessary. The judge said that he was satisfied that the abortion was in her best interests and that it should be performed: 'There is a serious danger to her health, but ... the adverse effects on her of being forced to bear her child are likely to be so grave that they make it essential.' In reaching this view, he '[leant] on the side of necessity as the guiding principle'.

Child consents, parents refuse

A child who is 'Gillick-competent', that is, sufficiently mature to understand a proposed medical procedure, is legally entitled to consent to it even if the parents object. That is clear from the Gillick case, in which Mrs Gillick was held not to be entitled to prevent her daughter from being given contraceptive advice, even if she thought her daughter was too young.

However, a court has wider powers than a parent and can override a child's consent if the court believes that to be in the child's best interests (Re R (a minor) (wardship: medical treatment) [1991] 4 All ER 177). This means, for example, that if a mature child were determined to consent to a sterilisation procedure or to cosmetic surgery such as a 'tummy tuck' operation, a court could declare the procedure not to be lawful and 'so prevent it, whereas a parent could not.

Child refuses, parents consent

It would seem, as a matter of logic, that a child who is sufficiently mature to consent to treatment should also be mature enough to refuse it (as an adult patient is entitled to do, even if that causes the patient to die or to suffer adverse consequences). Indeed, that seems to have been the view of Justice McHugh in his dissenting judgment in Marion's case; however, he was the only judge to comment on this issue and his remark is not binding as it was made incidentally and only by him.

Justice Deane, also in Marion's case, said that parental power was a 'dwindling right' that decreased with the increase in the child's competence. He envisaged 'a transitional stage' during which such power would be shared between parent and child (Marion's case, p.294); this would seem to suggest that a parent could consent to treatment even if a child refused. Justice Brennan (as he was then) questioned whether 'the primacy of parental responsibility was sufficiently recognised in Gillick' (Marion's case, p.281), and stated that the exercise of parental authority for the welfare of a child would enable a parent to consent to therapeutic treatment 'whether or not the child consents' to it (Marion's case, p.278).

In a number of recent English cases, some judges have accepted that the refusal of a mature minor can be overridden not only by a court order if that is in the minor's best interests (South Glamorgan County Council v. Wand B [1993]1 FLR 574; Re K, Wand H (minors) (consent and treatment) [1993] 1 FCR 240), but also, as Lord Donaldson said in two other recent cases, by a parent's consent (as noted earlier in Re R; also Re W (a minor) (wardship: medical treatment) [1992]4 All ER 627).

The case of Re R involved a 15-year-old girl with a history of family problems. The child had been placed in a children's home after a fight with her father, but became more disturbed, once threatening to commit suicide and another time attacking her father with a hammer. With her consent, she was placed in an adolescent unit and sedated periodically. However, at times she was paranoid, argumentative and hostile, arid the unit wanted to give her anti-psychotic drugs. In her rational, lucid periods, she objected to taking the drugs. The local authority applied for leave from the Court to administer medication, including anti-psychotic drugs, whether she consented or not. The Court of Appeal upheld the decision of the judge to whom the application was first made; that compulsory medication could be given even if the girl was 'Gillick-competent' and refused. Lord Donaldson said that: 'In a case in which the Gillick-competent child refuses, but the parents consent, that consent enables treatment to be undertaken lawfully ... [the child] will have a power to consent, but this will be concurrent with that of a parent or guardian' (Re R, pp.l85, 187).

It follows from this statement that if a mature minor refused treatment but a parent consented, that would, according to Lord Donaldson, be sufficient authority for the doctor to proceed. However, as he emphasised, the parent's consent would not require the doctor to treat; rather, whether treatment is appropriate is 'dependent upon an exercise of his own professional judgment' (Re R, p.187). The child in that case was, in fact, found to be not competent due to the psychiatric condition, but the Court of Appeal held that parental consent would have been lawful even if the child had been competent.

The second English case, Re W, concerned a 16-year-old girl who refused treatment for anorexia nervosa. She had been orphaned at 8 years-of-age and had experienced unhappy foster care, a progression of doctors, depression, anorexia nervosa, violence towards treatment staff and compulsive self-injury. She had reached the point where 'it was agreed medical opinion that, should she continue in this way, within a week her capacity to have children in later life would be seriously at risk and a little later her life itself might be in danger' (Re W, p.636).

The girl was admitted to a specialised adolescent residential unit run by a specialist psychiatrist but, because her physical condition was deteriorating, it was proposed that she should be transferred to a hospital specialising in treating eating disorders. However, she did not want to go and refused to be moved. The local authority applied to the Court for an order that she be moved to the hospital and given treatment without her consent, if that was necessary. The judge who heard the application ruled that although 'W' had sufficient understanding to make an informed decision, she should be moved to the hospital and treated without her consent. She appealed.

The Court of Appeal ordered that, despite her refusal, 'W' should be fed with a naso-gastric tube. Lord Donaldson presided in this case, as he had in Re R. He said that although the wishes of a Gillick-competent child 'are of the greatest importance both legally and clinically' (Re W, p.63 7), the Court could override those wishes if the circumstances were such that, without treatment, she would in all probability suffer permanent injury. Moreover, he said that the 'flakjacket' of consent that protects a doctor from an action in battery (treatment without consent) could be given either by the patient or by 'another person having parental responsibilities'; '[the doctor needs only one [flakjacketl and so long as he continues to have one he has the legal right to proceed' (Re W, p.635).

It is not certain that an Australian court would take the same approach as Lord Donaldson as the matter has not arisen here. In Marion's case, the majority judges approved the general principle stated in Gillick, that a mature child who can fully understand what is proposed is legally entitled to consent. Adopting the opinion of Lord Scarman in that case and the comment ofJustice McHugh mentioned earlier is not conclusive (especially in view of the comments ofJustices Deane and Brennan), and the matter is still open. However, even if Lord Donaldson's approach were to be followed, it would be limited to extreme cases. Lord Donaldson himself emphasised that it is 'self-evident' that minors should be given 'the maximum degree of decision-making which is prudent', and that 'Prudence does not involve avoiding all risks, but it does involve avoiding risks which, if they eventuate, may have irreparable consequences or which are disproportionate to the benefits which could accrue from taking them' (Re W, p. 638).

Consent and ethics of treatment

There are some procedures that cannot be lawfully undertaken on a child even if consent is given both by the child and the parents, and the doctors believe the procedure to be in the child's best interests. These procedures are 'ethically contentious', or raise doubts about whether they are really in the child's best interests.

Gender reassignment surgery on a child is a case in point. Even if the child wants the surgery and his or her parents agree, court approval must be sought. This is illustrated in Re A (a child) (1993) FLC 92-402 (A's case), a case involving a 14-year-old girl. 'N was conceived a genetic female but was masculinised due to an abnormality in the adrenal gland. She had genital reconstruction to make her look more feminine and was given female hormones. However, as she grew older, she became even more masculinised and felt she would be better as a male. When 'N reached 14 years-of-age, her mother applied to the Family Court to authorise gender reassignment surgery: 'bilateral mastectomies, a hysterectomy and oophorectomy, ... [and] a closure of the labia to create the appearance of a scrotum and the insertion of prosthetic testes'.

The Court was satisfied that 'N (to whom it gave the male pronoun) had a general understanding of the problem and the proposed surgery, and desired it. It was not satisfied, however, that 'N had 'sufficient capacity and maturity to fully appreciate all aspects of the matter and to be able to assess objectively the various options available to him'. It was therefore necessary for someone else to consent on his behalf. The Court said that, in relation to these procedures, it was 'not . within the ordinary scope of parental power to consent to medical treatment ... [and] court authorisation ... [was] a necessary "procedural safeguard" '. The Court then went on to authorise the application, largely on the basis of evidence from a psychologist that 'there ... [was] a probability of very serious negative consequences to A' if the application was rejected.

Conclusion

It can be seen from this discussion that, although parents generally have lawful authority to consent to medical procedures for infants and young children, that authority is not unfettered; it is effective only when they are acting in the best interests of the child. If there is any doubt about whether a parent's decision is, in fact, in the child's best interests, such as where the parent or parents want a child to be sterilised or treatment withheld or withdrawn, any person may apply to a court either to have the parents authorised to decide in that way, or to override the parents' decision.

A parent's authority also generally decreases as the child gets older, so that as a child becomes old enough to understand fully what is proposed in a medical procedure, the child is able to consent him or herself, even if the parent disagrees. The age at which this occurs depends on the age and maturity of the child and the nature of the procedure in question. For relatively simple procedures, the age may be quite low. Even a child of eight or nine years could probably consent to minor, non-invasive procedures.

For more serious or ethically contentious procedures, such as the supply of contraceptives or an abortion, the child must be older; however, there is little legal authority to guide parents and health professionals in Australia. It is also unclear as to when children are entitled to refuse treatment that their parents want them to have; it appears that children can be mature enough to consent to treatment, but not mature enough to refuse it, particularly if they will die or risk serious consequences without it. The law in this area is still developing, and it is difficult to predict iq advance how a court would decide a particular case.

It may be thought that the implementation of the United Nations Convention on the Rights of the Child may increase the child's right to make medical decisions. However, although the Convention has been ratified by Australia, it does not become part of the domestic law until legislation is enacted to give effect to its provisions. The legal effect of such international agreements is problematic. Justice Nicholson (1993), for example, has sceptically observed that countries that have ratified the Convention without legislating to give effect to it are 'in the happy position of appearing to adhere to principles which they are not prepared to put into practice'. Moreover, he considers that 'while the Convention ... is of persuasive significance ... its requirements are frequently ignored'. Nevertheless, he noted that the Human Rights and Equal Opportunity Commission has intervened in a number of cases (such as Marion's case) 'to place relevant human rights issues before the Court', and courts have an undisputed power to act in a child's best interests by authorising treatment or declaring treatment unlawful (Nicholson 1993, p.8).

A more fundamental problem, perhaps, both for courts and health professionals who have to decide whether a young person can consent to treatment without parental involvement, is the aspirational language of the Convention and the potential conflicts between the 'rights' it proclaims. For example, the perceived 'best interests of the child' may seem to require that the child's views should be overridden - the familiar conflict between beneficence and autonomy so often encountered in health and medical terms. Whereas autonomy may be allowed to dominate when the patient is a competent adult, the law has always been conservative in protecting the interests of children. For this reason I think that, despite the growing recognition of children's rights in other avenues of life, it will be some time before the courts will allow even the most mature minors to refuse life-saving procedure.

References

  • Alderson, Priscilla (1990), Choosing for Children: Parents' Consent to Surgery,  Oxford University Press.
  • Cica, Natasha (1991), 'The inadequacies of Australian abortion law', Australian Journal of Family Law,  vol.S, no.1, pp.3 7-68.
  • Lanham, David (1993), Taming Death by Law,  Longman Professional, Melbourne.
  • Mason, Ken (1989), 'Abortion and the law', in Sheila McLean (ed.), Legal Issues in Human Reproduction,  Dartmouth, Aldershot, UK.
  • NHMRC (1993), General Guidelines for Medical Practitioners on Providing Information to Patients,  endorsed by the National Health and Medical Research Council at its 11Sth session in Adelaide on 2-3 June.
  • NHMRC (1987), Research on Children, The Mentally Ill, Those in Dependant Relationships  or Comparable Situations (Including Unconscious Patients), Supplementary Note 2 to The Statement  On Human Experimentation,  NHMRC, Canberra.
  • Nicholson, The Hon. Justice Alastair (1993), The medical treatment of minors and intellectually disabled persons - United Nations Convention on the Rights of the Child, Article 23, paper presented at the First World Congress on Family Law and Children's Rights, unpub.
  • Queensland Law Reform Commission (1995), Consent to Medical Treatment of Young People, Working Paper No.44. 
  • Seymour, J. (1992), 'The role of the Family Court of Australia in child welfare matters', Federal Law Review, vol.21, no.1, p.11.
  • United Nations General Assembly (1989), The Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, 20 November 1989.
  • WALRC (1988), Law Reform Commission of Western Australia, Discussion Paper on Medical Treatment for Minors, Project No. 77, Perth.