Feature

Children and consent for medical treatment


Neelima Choahan


20/08/2018 3:35:39 PM

All adult patients in Australia are presumed to be competent to provide consent to their own treatment. But can children and young people give consent?

Dr Sara Bird says parents or guardians generally give consent for children and young adults under the age of 18, but there are exceptions.
Dr Sara Bird says parents or guardians generally give consent for children and young adults under the age of 18, but there are exceptions.

The 15-year-old patient asked her GP if everything she said during the consultation would be kept secret.
 
The GP said she could not provide an absolute guarantee, but any information provided to her by a patient would generally be kept confidential.

The girl then told the GP she had a 16-year-old boyfriend and she would like to start taking the oral contraceptive pill, and was adamant that she did not want her parents to know she was sexually active and on the pill.
 
The GP was uncertain of her legal position in treating a patient without the consent of her parents.
 
Dr Sara Bird, Manager of Medico-legal and Advisory Services at MDA National, told newsGP that consent is required for every aspect of treatment.
 
‘Sometimes people only think about consent in terms of a surgical procedure,’ Dr Bird said.
 
‘By law, you need to have consent for any intervention, and that includes taking a history and performing a physical examination.’
 
Who can give consent?
‘All adult patients are presumed to be competent to provide consent to their own treatment,’ Dr Bird said.
 
‘Consent for the medical treatment of patients who are under 18 years of age is generally provided by parents or guardians in Australia.’
 
According to Dr Bird, when giving consent parents are obliged to act in what is considered the best interest of the child or young person.
 
However, she said, there are circumstances in which patients under the age of 18 can consent to their own medical treatment.
 
Common law or legislation
Dr Bird said law can refer to common law (based on previous cases) or legislation.
 
In Australia, specific legislation regarding the medical treatment of children exists only in South Australia (SA) and New South Wales (NSW), with legislation for the rest of the country common law based on a 1986 English House of Lords judgment, Gillick v West Norfolk and Wisbech Area Health Authority.
 
‘In NSW, the Minors (Property and Contracts) Act 1970 provides some guidance regarding the medical and dental treatment of children and young people,’ Dr Bird said. ‘Section 49 of this Act states that a medical practitioner who provides treatment with the consent of a child 14 years or over will have a defence to any action for assault or battery.
 
‘This Act does not assist a medical practitioner in a situation where there is a conflict between a child and their parent, and a parent can still potentially override a child’s consent to treatment.’
 
Dr Bird said the Consent to Medical Treatment and Palliative Care Act 1995 outlines the legal requirements for obtaining consent by medical and dental practitioners in SA. This Act states that a child 16 years and over can consent to their own medical treatment as validly as if they are an adult. Additionally, a child under the age of 16 years can consent to medical procedures if:

  • the medical practitioner is of the opinion the patient is capable of understanding the nature, consequences and risks of the treatment and the treatment is in the best interests of the health and wellbeing of the child
  • that opinion is corroborated in writing by at least one other medical practitioner who has personally examined the child before the treatment was commenced.
Common law – Gillick competency
Dr Bird said under common law, patients under the age of 18 who are determined to be ‘Gillick competent’ or a ‘mature minor’ can consent to their own medical treatment.
 
‘Mrs Gillick had five daughters and her area health service [in the UK] put out a directive to GPs saying that they could prescribe contraceptives to a person under the age of 16 years without the prior knowledge or consent of their parents,’ Dr Bird explained.
 
‘Mrs Gillick sought a declaration from the court this guidance that had been issued was unlawful and she wanted the court to say a health practitioner could not give advice or treatment about contraception to a person under the age of 16 years without the consent of their parent, because it would be inconsistent with parental rights.
 
‘But the majority of the House of Lords in the UK rejected her claim and determined that there were circumstances in which a child or young person could consent to their own medical treatment.’
 
The court outlined criteria that needed to be considered by a doctor, to determine whether the child or young person was able to consent to their own medical treatment.
 
‘[The court determined] the child or young person must have a “sufficient understanding and intelligence to enable him or her to fully understand what is proposed”,’ she said.
 
‘This is often referred to as “Gillick competence” or the “mature minor”.’
 
Dr Bird said in Gillick’s case the judges determined the concept of absolute authority by a parent over a child or young person was no longer acceptable.
 
‘Because this absolute authority no longer existed, the House of Lords held that even though it will, in most cases, be in the patient’s best interests to have parental consent, there may be special occasions when the best interests of the child or young person may be served without it,’ she said.
 
What level of maturity is required?
‘The level of understanding and maturity required to provide consent actually varies with the nature and complexity of the medical treatment,’ Dr Bird said. ‘So it’s not like one day the child is not Gillick competent and the next day they are.
 
‘It would depend on what medical treatment is being proposed.
 
‘For example, the level of maturity required for a child or young person to consent to the treatment of a superficial graze is going to be quite different and much less than that required to provide consent to commence on the oral contraceptive pill.’
 
Can a GP ignore the wishes of a patient?
Dr Bird said a GP cannot go against the wishes of a patient if they are a ‘mature minor’.
 
‘If the patient was Gillick competent, it would be a breach of their confidentiality and privacy to discuss their medical care with their parents against their express wishes,’ she said.
 
What if the parents are separated?
Dr Bird said, by law, either of the parents can give consent, unless there is a court order to the contrary.
 
Consent in an emergency situation
No consent is required in emergency situations if it is impractical to do so.
 
‘In the case of a medical emergency where treatment is immediately necessary to save the life of a patient or to prevent serious injury to their health, and the patient is not able to consent to the required treatment at the time, a medical practitioner may perform emergency treatment,’ Dr Bird said.
 
Consent can involve a combination of people
Dr Bird said depending on the specific circumstances, consent to medical treatment of a patient younger than 18 years of age may be provided by either the:
  • patient
  • parent or legal guardian
  • court (eg for permanent sterilisation procedures)            
  • other agencies (eg in NSW the consent of Guardianship Tribunal is required for ‘special medical treatment’. Special medical treatment includes sterilisation, vasectomy or tubal occlusion).
‘While in many cases it is preferable to obtain the consent of both the child and the parent for medical treatment, there may be specific circumstances in which the best interests of the child or young person may be served without the parents’ consent,’ Dr Bird said.
 
‘If GPs are uncertain about their legal obligations in a particular situation involving consent to medical treatment of a child or young person, they should seek advice from a colleague and/or their medical defence organisation.’



common law Gillick competence medical consent





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