THE LAW ABOUT CONSENT TO MEDICAL TREATMENT FOR CHILDREN Australian law is a mixture of statute law (Acts and Regulations, also known as st...
THE LAW ABOUT CONSENT TO MEDICAL TREATMENT FOR CHILDREN Australian law is a mixture of statute law (Acts and Regulations, also known as statutes or legislation, made by Parliament) and common law (which is made by the courts when they make decisions which set a precedent for future cases) . In all Australian states and territories except South Australia, there is no legislation specifying when a child may consent to medical treatment on their own behalf . Instead, the common law applies . At common law, a child under 18 may legally consent to most types of medical treatment on their own behalf if they are competent to do so
. If the child is not competent, parental consent must usually be obtained (Bird 2005) . The common law position relating to a minor’s competence to consent to treatment was established by the English House of Lords decision in a case known as ‘Gillick’ (Gillick v West Norfolk and Wisbech Area Health Authority[1986] AC 112) and was adopted by the High Court of Australia in a case known as ‘Marion’s case’ (Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992)175 CLR 218) The Gillick case concerned an application by a mother for an order to prohibit the local health authority from giving contraceptive advice to her teenage daughters without parental consent . The court dismissed Mrs Gillick’s claim and held that parental authority over their child diminishes as the child becomes increasingly mature .
The court held that a child with the maturity to understand the nature and consequences of the treatment has the legal capacity to consent on their own behalf, without the necessity for parental consent or knowledge . The term ‘Gillick competence’ is now widely used by lawyers and health practitioners dealing with young people (Wheeler 2006) . It is also common to refer to the ‘mature minor principle’ . For a child to be ‘Gillick competent’ he or she must have “sufficient understanding and intelligence to enable him or her to understand fully what is proposed” . This must be assessed on a case-by-case basis depending on the nature of the treatment proposed . SOUTH AUSTRALIA Section 6 of the Consent to Medical Treatment and Palliative Care Act 1995 (SA) provides: “A person of or over 16-years-of-age may make decisions about his or her own medical treatment as validly and effectively as an adult.”
This means that 110 a child aged 16 or over has the capacity to refuse treatment as well as consent to it. A child under 16 can validly consent to treatment if: “The medical practitioner is of the opinion that the child capable of understanding the nature, consequences and risks of the treatment and that the treatment is in the best interest of the child’s health and well-being, and That opinion is supported by the written opinion of at least one other medical practitioner who personally examines the child before the treatment is commenced. (Section 12, Consent to Medical Treatment and Palliative Care Act 1995 (SA))” If emergency medical treatment is required “to meet an imminent risk to life or health” and the patient is incapable of consenting (e .g . because they are unconscious or lack competence), treatment may proceed without their consent . However, if the patient is 16 or over, they have the right to refuse treatment (Consent to Medical Treatment and Palliative Care Act 1995 (SA) Section 13) .
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