MAKING A COMPETENCY ASSESSMENT Health practitioners in Australia

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 .

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
• 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
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 .
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 .
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 .

A medical practitioner’s assessment about a child’s
competency could be influenced by cultural
Section Three - Chapter Five

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 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 .
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 .
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 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 .

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

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