NEW SOUTH WALES New South Wales does not have any legislation specifying when a child has the capacity to consent to medical treatment (NSW...
NEW SOUTH WALES New South Wales does not have any legislation specifying when a child has the capacity to consent to medical treatment (NSW Law Reform Commission 2008) . However, under the Minors (Property and Contracts) Act 1970, if a minor aged 14 and above consents to their own medical treatment, the minor cannot make a claim against the medical practitioner for assault or battery . Also, where medical treatment of a minor aged less than 16 years is carried out with the consent of a parent or guardian of the minor, the minor cannot make a claim against the medical practitioner for assault or battery . This law is intended to protect doctors and dentists from liability, but it does not alleviate the need for a practitioner to make an assessment of the young person’s competence in each individual case . A child younger than 14 may be competent to consent to treatment . Conversely, a child aged 16 or over may lack competence .
MAKING A COMPETENCY ASSESSMENT Health practitioners need to make an assessment of competency to consent for all young people aged under 18 years (or 16 years in South Australia) . Competency will depend on age, maturity, intelligence, education, level of independence, and ability to express their own wishes . It will also depend on the gravity of the treatment proposed . For more drastic, invasive or risky types of treatment, a medical practitioner will need to take special care to ensure that the young person possesses the required competence to consent to treatment . Health practitioners must form their own opinion about a patient’s ‘intelligence and understanding’. For a young person, a full understanding involves appreciating: • What the treatment is for and why the treatment is necessary
• Any treatment options or alternatives • What the treatment involves • Likely effects and possible side effects/risks • The gravity/seriousness of the treatment • Consequences of not treating • Consequences of discovery of treatment by parents/guardians If a health practitioner is unsure whether a minor is competent they can: • Seek the opinion of a colleague . • Seek the consent of the minor’s parents or legal guardians . Keep in mind, however, the young person’s right to privacy and confidentiality and the risks of disclosing sensitive information to a parent, particularly in challenging family situations, or with sensitive areas such as contraception and pregnancy . • Obtain legal advice about applying for a court or tribunal order if the practitioner considers the treatment to be necessary and in the patient’s best interests . A health practitioner should make a file note about the outcome of the competency assessment . The file note should form part of the patient’s medical record . YOUNG PEOPLE WITH INTELLECTUAL DISABILITIES A young person with an intellectual disability is not automatically deemed incompetent to consent to treatment . The competence of a young person with an intellectual disability must be assessed on a case-by-case basis . YOUNG PEOPLE WHO ARE PARENTS A minor who is a parent has the legal capacity to consent to treatment for his or her child, in the same way as adult parents . However, the minor may not necessarily have legal capacity to consent to his or her own treatment .
LANGUAGE AND CULTURAL ISSUES A medical practitioner’s assessment about a child’s competency could be influenced by cultural Section Three - Chapter Five 111 Section Three - Chapter Five differences between the doctor and the young person . A cognitively mature adolescent may come across as socially or emotionally immature (or vice versa) because of different cultural expectations about their roles in the family/society (e .g . they may seem less independent), or differences in the way their thoughts or wishes are communicated . If in doubt, seek advice from a colleague or an appropriate agency . Valid consent can only be obtained if the young person understands what is being presented in a language in which they are fluent . Health care interpreters should be used where appropriate, particularly when working with a family from a non-English speaking background . Children should not be used as interpreters for their parents . Over the telephone interpreting is available through the Translating and Interpreting Service (TIS) – telephone 131 450 . This is a national service provided through the Department of Immigration and Border Protection and is free to GPs and pharmacists . The TIS is available 24 hours a day, 7 days a week, and is accessible from anywhere in Australia for the cost of a local call . THE RIGHT TO REFUSE TREATMENT The Gillick principle that allows for a competent minor to consent to treatment does not allow for a corresponding right to refuse treatment . In many cases, a health practitioner would be reluctant to perform treatment over a young person’s objection, especially if the young person is relatively mature and it is not major or life-saving treatment . However, treatment may be performed against a child’s wishes, even if they are Gillick competent where the treatment is urgent . In such cases, treatment may proceed without obtaining parental or patient consent . Otherwise, parental consent to refuse treatment or a court order would be necessary . COMMON AND NOT-SO-COMMON MEDICAL ISSUES PROVIDING SEXUAL HEALTH EDUCATION, INFORMATION AND CONDOMS There is no restriction on providing these to children of any age, although health workers should ensure that these are being provided in an age-appropriate way . PRESCRIBING CONTRACEPTION Hormonal contraception (the oral contraceptive pill, injectable and implantable hormones) can be prescribed for a minor, regardless of the reason/s why, without parental consent, provided that the young woman is deemed competent by her doctor to give informed consent . This is also true for emergency hormonal contraception (‘morning after pill’) . STERILISATION Sterilisation for contraception purposes cannot generally be performed without a court or tribunal order, even if the parent or child gives consent (see further discussion of sterilisation below) . Each state and territory has slightly different laws . In NSW, for example, sterilisation is regarded as a “special medical treatment” and may not be performed on a child under 16 without an order from the Guardianship Tribunal, unless it is performed to remediate a life-threatening condition . If sterilisation is an unwanted consequence of another treatment which is necessary to save a young person’s life or prevent serious damage to their health, treatment can generally be performed with the child’s consent (if deemed Gillick competent) or otherwise with parental consent . However, if sterilisation is sought for contraceptive purposes, or for other purposes (such as menstrual management for a young woman with an intellectual disability) then a court or tribunal order may be required . For a child who does not have the capacity to consent to non-therapeutic sterilisation (i .e . the sterilisation is not for the purpose of treating a disease), parental consent is not sufficient and a court or tribunal order is required . This is the effect of the decision of the High Court of Australia in ‘Marion’s case’, which concerned a young woman with an intellectual disability .
Her parents were gravely concerned not only about the risk of pregnancy, but also about her ability to cope with menstruation . The court held that where the child is not Gillick competent and the medical procedure is non-therapeutic, a court order is required . This is because there is a significant risk of making a wrong decision about the child’s capacity to consent or the child’s best interests, and the consequences of making a wrong decision are grave . In most states and territories, it seems that a Gillick competent child aged 16 or over may be able to consent to sterilisation . However, in accordance with the Family Court’s decision in Re: Jamie (see the discussion of this case under Treatment of transgender children), there may be a need for a court to determine whether or not the child is Gillick competent
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