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
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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