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) .
