3.5 MEDICO-LEGAL ISSUES
MELISSA KANG AND JANE SANDERS
Legal and ethical frameworks are fundamental
to the professional conduct and practice of
health care. Working with young people involves
additional considerations because of their
legal status and their stage of development. The
law is not clear-cut in many aspects relating to
young people under 18 years: much is left to the
judgement of the medical or health professional
as to the maturity of the young person and their
capacity to consent.
This chapter provides a broad overview of the
major legal and ethical issues as they might apply
to young people, particularly those under 18 . They
include:
• The capacity of adolescents to consent to
medical treatment on their own behalf
• Parental consent to treatment
• Confidentiality, privacy and access to medical
records
• Child protection and mandatory reporting
This chapter is not a prescriptive statement of the
law . If you are faced with a situation in which you
are unsure about how the law applies, you can seek
legal advice through your employer or insurer .
UNDERSTANDING MEDICOLEGAL TERMINOLOGY
The terminology used to describe recipients of
health care and health care providers is different in
different pieces of legislation . In this chapter:
Medical treatment may not necessarily refer only
to ‘treatment’ performed by a medical practitioner .
In some contexts, ’treatment’ may include health
care or advice provided by other practitioners such
as nurses or counsellors . In general, health information and education is not subject to the same laws
as medical treatment, and may be provided to
children regardless of their age .
Patient is used to reflect the terminology used in
much of the relevant legislation although in some
health care settings, the term ‘client’ might be used
instead .
Medical practitioner and health practitioner are used
based on the legislative source of the obligation .
Many obligations, such as the obligation to privacy,
may be covered by several pieces of legislation
that apply to both medical and non-medical health
professionals . To make sure it is clear, in this chapter
a medical practitioners is a health practitioner .
Children or child will be used often in this chapter
when referring to the legal definition of a child –
which is anyone under 18 years .
UNDERSTANDING CONSENT
When can a young person under 18 years make
his or her own decisions about medical treatment?
Can parents or guardians make decisions about
medical treatment for young people under 18? In
what situations will it be necessary to seek an order
from a court or tribunal?
Health practitioners may have concerns about these
questions because:
• They are unsure how to assess a young person’s
capacity to give their own consent even if,
strictly speaking, the law allows them to;
• They are unsure about where they stand from a
legal perspective if they assess a young person
as having capacity to consent to medical
treatment and then proceed to provide that
treatment;
• They are unsure whether they can, or should,
involve parents in decisions about consent .
No matter the patient’s age, ‘consent to medical
treatment’ means that the patient makes a decision
about their treatment, usually based on information
and advice given by the health practitioner . You
must have consent before commencing treatment .
Lack of consent may expose a health practitioner to
the possibility of civil or criminal liability .
To be valid, consent requires certain qualities:
• The patient must have the capacity to give
consent
• The patient must be able to understand the
general nature of the treatment
• The consent must cover the act performed
• The consent must be voluntary
INFORMED CONSENT
‘Informed consent’ is a separate concept to consent,
but it is related .
Informed consent means consent to treatment after
having been informed of all significant risks associated with the treatment . All health practitioners
should try to ensure that patients are fully informed
of the risks and benefits of any treatment before
obtaining consent .
THE CAPACITY OF ADULTS TO CONSENT
OR TO REFUSE TREATMENT
Across Australia, 18 years is the legal age of
majority (‘adulthood’) . The law assumes that adults
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Section Three - Chapter Five
are competent to make decisions (either consent or
refusal) about their medical treatment even if their
decision is deemed not to be in their best interests .
There is an exception for adults who lack the capacity
to make treatment decisions, such as people with
intellectual disabilities or those affected by certain
forms of mental illness .
All states and territories in
Australia have laws that allow others (e .g . family
members, guardians, courts or tribunals) to make
decisions for people who lack the capacity to make
decisions on their own behalf .
THE CAPACITY OF YOUNG PEOPLE
TO CONSENT TO TREATMENT
Young people under 18 are minors under Australian
law . Minors have the legal capacity to make their
own decisions, independently of their parents, in a
variety of situations (Lennings 2013) .
In general, if the patient is under the age of 14 years,
the consent of the parent or guardian is necessary .
Minors aged 14 and above may have the capacity
to consent to medical treatment depending on their
level of their level of maturity; their understanding
of the proposed treatment and its consequences;
and the severity of treatment .
A health practitioner
must make a case-by-case assessment of whether
the young person has sufficient understanding and
intelligence to enable him or her to fully understand
what is proposed .
PARENTAL CONSENT FOR TREATMENT
If a child under 18 does not have the capacity to
consent to treatment, in general a parent may
consent on their behalf .
In many cases, even if a child is competent to
consent on their own behalf, a parent may still
validly consent on their behalf . However, if a health
practitioner considers that a child is competent, it
may be appropriate to obtain both parental and
patient consent . For some types of major and special
treatment (such as sterilisation) parental consent is
not sufficient, and a court order is required .
EMERGENCY TREATMENT
In general, treatment may be performed without the
consent of either the parent or the child if the health
practitioner is of the opinion that the treatment
is necessary, as a matter of urgency, in order to
save the child or young person’s life . In practice,
that means that emergency medical and first aid
treatment may be provided without the consent of
the minor or a parent or guardian .