Children And Medical Consent

Everyday decisions about a child’s medical treatment can be made by a parent or person who has parental responsibility for the child. Decisions about major medical treatment that will have a long-term impact need to be made in consultation with both parents, or all people who have been granted parental responsibility. If the parties cannot agree on consent to medical treatment, a court can make a determination.

Parental responsibility and court intervention

Parental responsibility means all the duties, powers, responsibilities and authority parents have in relation to children. Under the Family Law Act 1975, each parent of a child aged under 18 has parental responsibility for that child, unless a court has ordered otherwise.

For medical treatment of a child, there must be consent from someone with parental responsibility, unless emergency treatment is required and it is not possible to obtain consent beforehand. A court order can be sought when the parties cannot agree.

Where a child is at risk of serious harm or death, and the child’s parents are refusing to allow life-saving treatment (such as chemotherapy), a medical practitioner can apply for such a court order.

A child themselves can seek a court order granting consent to a medical procedure where there is dispute about their treatment. A child who is in state care can also apply for a court order on their own behalf.

Gillick competency

A court may be called upon to determine whether the child is “Gillick competent”. To be Gillick competent, a child must have enough maturity and intelligence to understand the impact of the treatment on their body, the gravity of the decision, and its implications (particularly if the procedure is irreversible or significantly life-altering). After assessing medical evidence presented, if the court is satisfied the child is Gillick competent, the child can consent to treatment by themselves and the court’s involvement ends.

If the court deems the child is not Gillick competent, it must decide whether treatment is in the child’s best interests.

Best interests of the child

The best interests of the child are the paramount consideration under the Act. In determining what is in the best interests of a child, a court has as a primary consideration the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Circumstances and context will influence any decision to be made by a court. Case law has set out factors that may be considered, which include:

• the particular condition the child has;
• the nature of the procedure or treatment;
• the reasons for the procedure or treatment;
• alternatives available and why they are not the most suitable options;
• the physical effects on the child, and the psychological and social implications for the child of having or not having the procedure or treatment;
• the nature and degree of any risk to the child of having or not having the procedure or treatment;
• the views of the child and the child’s guardian to the procedure or treatment and to any alternatives.

Special medical procedures

There are some “special medical procedures” that cannot be performed on a child without consent from the court, regardless of whether the child’s parents or medical practitioners have given consent. These generally involved medical procedures or interventions that:

• are invasive, permanent and irreversible;
• non-therapeutic, meaning they are not for the purpose of curing a disease or malfunction;
• carry a significant risk of making a wrong decision in relation to a child’s current or future capacity to consent;
• involve determining the best interests of a child who cannot consent;
• carry grave consequences is a wrong decision is made.

Examples of special medical procedures include:

• sterilisation of a child with intellectual disabilities;
• experimental drug treatment;
• treatment for gender identity disorder;
• sex reassignment surgery;
• bone marrow harvesting;
• pregnancy termination;
• indefinite detention and sedation.

Treatment refusal

A Gillick-competent child has the right to refuse treatment provided it is in their best interests. This refusal may go against of the wishes of the child’s parents. A court, can however, over-rule a refusal if the refusal would have grave consequences or place a child’s life at risk.

Parents can refuse treatment when making decisions about the everyday health of their child, such as by choosing not to administer medicine prescribed by a doctor. However, if the parents’ refusal of treatment is not considered in the best interests of the child, the court can over-rule the refusal. This may be the case when parents refuse life-saving blood transfusions for a child on religious grounds.

End-of-life decisions

Consent may also an issue in relation to the withholding or withdrawal of treatment for a child at the end stages of their life. Such circumstances arise when a child is born with or develops health complications, illness or disease; or becomes gravely injured as the result of an accident.

A court will become involved if there is a dispute over what is in the child’s best interests. Cases have involved decisions about, for example:

• the removal of a breathing tube and the administration of sedatives to provide palliative care for a baby;
• mechanical ventilation of a child;
• a do-not-resuscitate order for a severely disabled child.

For advice or representation in any legal matter, please contact Armstrong Legal.