Updates and background for this project (Digest)

• The debate about young people’s consent
• Protecting young people from unwise choices: the traditional approach
• Moving beyond a protective framework?
• The practical benefits of involving the young patient
• The role and responsibilities of parents and other caregivers
• Serving the young person’s “best interests”
• Conclusions

THE DEBATE ABOUT YOUNG PEOPLE’S CONSENT

I don’t want to die, but I would rather die than have the transplant and have someone else’s heart, I would rather die with fifteen years of my own heart. If I had someone else’s heart, I would be different from anybody else – being dead would not make me different from anyone else. I would feel different with someone else’s heart, that’s a good enough reason not to have a heart transplant, even if it saved my life.

2.2 If the young woman in this case had been an adult, her decision to refuse the heart transplant would have been respected² and, based on the medical evidence presented in the case, she would likely have died. Although many people may not agree with them, her views on what amounts to an unacceptable cost in choosing to stay alive would have been acknowledged as legitimate and would not have attracted the intervention of the courts or anyone else.

2.3 But since the young woman in this case was not yet an adult, the law allowed the Court to reject her views in substitution for its own (although this was done with great sensitivity and consideration of her wishes). As a result, the young woman’s life was saved. Did the outcome justify the means, and to what extent should the law have deferred to her views?

2.4 In Chapter 1, the Commission recommended the introduction of legislation to regulate health care decision-making for young people in New South Wales, with particular attention paid to delineating the entitlements of young people and the proper roles and responsibilities of parents and other caregivers, as well as the State, in the decision-making process. But as the example above illustrates, this is an area where there are no easy answers about who should have a say and who should not. It evokes ethical and moral considerations and value judgments about life, death, the power of the individual young person to determine his or her own way of living (or dying), what some may see as a foolish waste of life, and a parent’s grief. The law is a blunt instrument to have to deal with these sorts of considerations, and the formulation of an appropriate legislative framework to fall back on in these situations is particularly challenging. Any attempt at devising such a framework should acknowledge from the start the moral and emotional dimensions of this area of the law, and its controversial nature which is susceptible to provoking at times heated debate.

2.5 The examples of situations that may provoke such debate are wide-ranging. Choices about life-saving treatment, palliative care, blood and organ donation, sterilisation of young people with significant intellectual disabilities, predictive genetic testing for a hereditary disease, sexual health, contraceptive advice, termination of pregnancy, ante-natal care, treatment for eating disorders and mental illnesses, are all instances that have been brought to the Commission’s attention in the course of this review as areas where there may be strong disagreement about who should have a right to decide.³ While these situations involve consideration of their own particular issues, there are several recurring concerns that resonate throughout them all. These concerns need to be taken into account in the attempt at formulating legislative policies.

2.6 A first concern is that decisions about health care are often life-changing, sometimes life-saving. The stakes are high in terms of devising appropriate legislation to govern who can make those decisions. There is growing public concern about the state of young Australians’ health over a range of health issues: increases in the incidence of chronic illnesses such as juvenile diabetes and asthma, a rise in childhood obesity, the effects of substance use and abuse, and worsening trends in young people’s mental health, are just some examples. The need to improve young people’s access to appropriate health care is the backdrop against which this discussion about decision-making rights and responsibilities takes place, and highlights the impact that the decision-making process will have on many young lives. As well, technological and medical advances in the types of testing and treatment available, and continued growth in alternative means of treating conditions, provide an increasing range of choices to be made in addressing specific health concerns. In short, decisions about health care often involve consideration of several options, and the consequences of making a choice can have a significant and sometimes irreversible effect on a young person’s life.

2.7 Another concern is that these types of situations typically bring into focus the appropriate role of parents and other caregivers in the lives of their children. Questions about who should be able to have a say in a young person’s health care can challenge a parent’s responsibility and privilege to control not just the physical care of their child, but his or her moral and emotional care as well. Intervention in parents’ decisions about their children’s health care by the State, or recognition of a young person’s right to make that decision on his or her own, may be considered by some to undermine the privacy and sanctity of the family unit.

2.8 A last concern, and perhaps the most difficult one to respond to, is that these situations highlight an ambiguity in the way we perceive, and should perceive, our younger generation. On the one hand, we are aware of young people’s vulnerability, and the need to protect them from bad decisions made either by others or by themselves. On the other hand, we acknowledge them as human beings in the full sense of what that means, respecting their integrity, their claim to autonomy, and their need to make their own mistakes. How can we reconcile these views in a practical way in determining who should be able to decide about their health care?

2.9 The law can seek to respond to these three central concerns in a number of ways. It can aim to:

• promote good health care among young people by ensuring their ready access to appropriate care;
• acknowledge the involvement of parents and other family members in their children’s health care and decisions about what is appropriate for their child;
• ensure that young people are free to make a choice about what is done to their bodies;
• recognise the responsibility of the State and of parents to protect young people from harm; and
• allow health practitioners to treat young people according to clear guidelines which are consistent with any professional ethics under which they work.

2.11 In the preceding chapter, Recommendation 1 spelled out the purposes and scope of the Commission’s proposed legislative framework, including the articulation of principles to guide its interpretation and application. This chapter traces the considerations that have gone into formulating those principles, which appear in Recommendation 2 below, and which we have applied in trying to find a sensible balance between the various concerns and competing interests in this area.

PROTECTING YOUNG PEOPLE FROM UNWISE CHOICES: THE TRADITIONAL APPROACH

2.12 In Chapter 1, the Commission considered the meaning and purposes of consent as a legal concept in health law. We noted that this review focuses on the assessment of young people’s capacity to consent and that, unlike adults, young people have been traditionally assumed to lack capacity to consent to their own health care because of their assumed immaturity. We also noted that the law’s insistence on consent as a general prerequisite to the provision of health care reflects the importance that the law historically places on the principle of individual autonomy, however that notion may be defined. By assuming that young people lack capacity to consent, the law has traditionally refused to recognise them as autonomous individuals and has instead applied to them more protective principles aimed at shielding them from their own foolish choices.⁵

2.13 The English case of Gillick, to which we referred in paragraph 1.14, involving a teenager’s right to seek contraceptive treatment and advice, provided an opportunity to transform the traditionally protective role of the law. The House of Lords there recognised the potential for young people to be sufficiently mature to make their own choices about their medical treatment. The Australian High Court approved the House of Lords’ decision in the case of Marion and, in doing so, opened the way for Australian law in this area to be rethought. Since the decision in Gillick, the English courts have been criticised for retreating to a more conservative, paternalistic approach towards young people’s decision-making capacities.⁶ However, with the exception of a recent decision,⁷ most of the English cases since Gillick have involved serious life-threatening illnesses, with the central issue turning on a young person’s right to refuse life-saving treatment, rather than a right to consent to treatment. In Australia, there has been a dearth of case law on the issue, with consequently very little opportunity to develop the law further.

2.14 The ambiguities in the case law reflect the difficulty that lies at the centre of this debate, to which the Commission initially referred. To what extent should the law entrust young people with the responsibility of making their own decisions about their health care? In formulating its draft legislation, should the Commission follow on from the direction set in Gillick, and, if so, to what extent should it then reject the traditionally protective approach of the law?

MOVING BEYOND A PROTECTIVE FRAMEWORK?

The impact of the rise of children’s rights

The common law, however, while generally immutable in its principles, unless different principles are laid down by statute, is not immutable in the way in which it adapts, develops and applies those principles in a radically changing world and against the background of radically changed social conventions and conditions.⁸

2.16 This shift in attitude in the way society looks at its young people is reflected in the rise of the children’s rights movement in the law, both internationally and domestically. Internationally, the United Nations’ Convention on the Rights of the Child afforded formal recognition to young people as rights-bearers. The Convention focused not only on young people’s right to have their basic needs met, but also emphasised their right to have a voice in society.⁹ Since then, the children’s rights movement, as a world-wide phenomenon, has grown and been given constitutional and legislative recognition, with a focus not simply on the fulfilment of young people’s basic needs for shelter and food, but also on recognition of their individuality and participation in society.¹⁰

2.17 Australia has witnessed a gradual evolution in the notion of children’s rights, with federal and State legislation relating to young people now emphasising the importance of involving young people in decisions which affect them. A clear example is the Children and Young Persons (Care and Protection) Act 1998 (NSW). This Act identifies as one of its guiding principles the principle of participation, which asserts the right of young people and children to participate in matters affecting them under the Act. The principle of participation was described at the time of its enactment as a radical and foundational principle of the legislation.¹¹ It is reflective of the changing policies of government agencies dealing with young people, which adhere now to the principle that young people be heard as well as seen, and their opinions sought and given weight to.¹²

2.18 Clearly, we as a society now consider our young people in a different light from the way they were seen even just over half a century ago. There is a growing awareness of young people as individuals with legitimate views to be heard. These changes in social attitudes are reflected and approved in legislation and government policies. Against this backdrop, we must scrutinise the validity of the law’s approach in generally denying young people a right to decide about health care.

2.19 Of course, rhetoric about young people’s rights, the importance of respecting their autonomy and freedom of choice is one thing. Does it match up with the realities of being young, and in particular the reality of surviving the various challenges that adolescence can offer? Should the law be prepared to hand over responsibility for making important, sometimes life-changing decisions about young people’s health to young people themselves, or are there still good grounds for denying them, even as they mature, a right to decide?

Do young people need protecting?: the characteristics of being young

And these children that you spit on/ As they try to change their worlds/ Are immune to your consultations/ They’re quite aware of what they’re going through …

David Bowie, Changes

2.21 There appears now to be a growing trend, at least in the legal literature, towards questioning the validity of the assumptions underlying the law’s traditionally protective approach, and to condemn it as unduly restrictive and paternalistic. Critics of the current law argue that there is not a sufficient difference between adults and (at least, older) adolescents to justify any distinction in their legal competence to make decisions. For example, one legal writer in New Zealand argues:

Children are now more mature, self-aware and financially independent than in the past. The stereotypical family unit is increasingly becoming the exception rather than the rule in modern society, with younger persons becoming self-sufficient or estranged from their parents.¹⁴

… Australia’s obligations under the [Convention on the Rights of the Child], and a growing understanding of the competency of young people in all areas of life, demand the implementation of a test that reduces, if not eliminates, the paternalism that has pervaded the assessment of children’s competency.¹⁵

2.24 In fact, over the last few decades, there has been a growing body of research into young people’s decision-making processes, taking account of the physiological developments of the brain, as well as the cognitive and social developments that characterise childhood and adolescence.¹⁶ Our interest in this research lies in what it suggests about the differences and similarities in decision-making skills of young people and adults.

The physical developments of the brain

2.25 The human brain is not fully formed at birth, but continues to grow and develop from that time into adolescence. These physical developments can to some extent be affected and shaped by a person’s environment. They are also said to have an impact on behaviour and thought processes.

2.26 The brain is divided into two hemispheres and within each of these hemispheres are four lobes. Three of these lobes continue to develop during adolescence. They are the parietal, the temporal, and the frontal lobes.¹⁷ The parietal lobe is associated with problem solving, the temporal lobe is associated with language development, and the frontal lobe is associated with the more complex or higher order processes of the brain known as its “executive functioning”, relating to planning, organising, ordering behaviour and impulse control. The frontal lobe is the last part of the brain to develop, and is said to continue to mature into late adolescence. Based on preliminary findings, a recent Australian study also posited that the release of hormones associated with the onset of puberty can cause a temporary deficit in the brain’s executive functioning which may consequently have an effect on a teenager’s behavioural control.¹⁸

2.27 The period from childhood to adolescence is also a time of development for neurones in the brain. People are born with a great excess of neurones. From the age of around two through to adolescence, neurones which are not being used and strengthened die off, and other neurones form connections with each other. This process has been termed “synaptic pruning”. The connections that are formed are strengthened and protected through another process known as myelinisation. As noted, brain development is susceptible to influence by its environment so that, without the right environment, correct development will not occur.

2.28 In short, it appears clear that the brain continues to undergo major physical growth and development through to late adolescence and early adulthood. There is some evidence that suggests that this ongoing development can affect a teenager’s behaviour, such as his or her impulse control and organisational skills. However, more research into such effects is needed in order to have a clearer idea of their impact (if any) on young people’s decision-making skills.

Theories on the development of decision-making skills

2.29 Early research into young people’s decision-making capacities focused on theories of cognitive development. Jean Piaget devised empirical means of studying the differences in cognitive abilities between young people and adults as a basis for his theories on the development of the mental processes of the brain. Based on his research, he argued that young people from around the ages of 11 to 14 are capable of complex mental operations, that is, they are able to think hypothetically and in abstract terms, to consider the future, and weigh up alternative options. Subsequent researchers have claimed that young people from the age of about 14 do not differ significantly from adults in their ability to understand and reason, for the purposes of making decisions about medical treatment,¹⁹ and that young people aged 15 and above are usually no less competent than adults.²⁰

2.30 If decision-making capacity is assessed according to cognitive abilities, then these studies point strongly to recognising an entitlement in young people, at least from their early to mid teens, to make their own health care decisions, because they suggest that there is no significant difference in cognitive abilities between this age group and adults. That is, there is no need, or justification, for treating young people, at least from their mid teens and up, differently from adults.

2.31 By contrast, other theorists on child development have considered young people’s decision-making capacity according to a wider range of factors extending beyond cognitive ability. These theorists argue for a broader notion of what is meant by mature judgment. Decision-making capacity should take account not only of young people’s cognitive capacities, but also their emotional and social development.²¹ A measure of competence should incorporate factors such as those relating to a person’s development of self-identity and an ability to appreciate risk and weigh up long-term consequences. Young people’s competence to make health care decisions should require not only an ability to understand information relating to the proposed health care, and to consider multiple options, but also to choose voluntarily (that is, independently of authority figures such as parents and physicians, and of peers), and to appreciate the nature of the decision (its gravity, immediacy, and the permanency of the choice). Decision-making competence should be linked not just with developing cognition, but also to life experience and experience in making decisions.²²

2.32 There are grounds for asserting general differences in young people’s social and emotional skills compared with those of adults. Adolescence has been described according to three developmental stages. The first stage (around the age of 10 to 14) involves a shift of attachment from parents to peers, the middle stage (around 15 to 17) involves the consolidation of self-image, experimentation and advancement of logical thought, and the final stage (which may extend to the age of 20 and above) involves an increasing sense of comfort with oneself, awareness of others, and an appreciation for meaningful relationships. These stages mark a process of separation from one’s parents towards an adult sense of oneself as an independent individual.

2.33 Young people’s progress through these developmental stages of adolescence is marked by a number of common features that can have an effect on their behaviour. For example, in the struggle for a stronger sense of self-identity, young people’s self-esteem can become particularly vulnerable. Their desire to conform with peers typically increases, peaking at around the age of 15. Adolescence can be a time for increased risk-taking behaviour, particularly in relation to experimentation with drugs, alcohol, and sex. It has been noted that teenagers often place more importance on the short-term consequences of a decision rather than the longer-term consequences of a more distant future. This explains why a teenager, fully aware of the long-term health risks involved, may decide to take up smoking because of the immediate benefits of peer acceptance and avoiding social ostracism.²³ It might also help to explain why the young woman in the case quoted at the beginning of this chapter was refusing a heart transplant, placing more importance on her desire not to be the odd one out, than increasing her prospects of survival, something which might seem completely rational for a person of her age, although an older person may have different priorities.

2.34 One American study, published in 2000,²⁴ compared a group of high school students (in their mid to late teens) with college students (over 18) in order to assess any general differences in each group’s emotional and social development. Based on its findings, the study concluded that, some time during late adolescence, important progress occurs in the development of individuals’ self-reliance (rather than reliance on peers), sense of individual identity, ability to appreciate long-term consequences of actions, and an ability to control impulsive or aggressive behaviour. No appreciable development of these characteristics was said to be evident past the age of 19. At the same time, the study emphasised that individuals of the same age may differ significantly in the development of these characteristics, making it difficult to mark a general chronological boundary for this level of maturity. The differences in maturity in young people of similar ages may be due not just to individual differences in personality, but also to differences in their situations and previous experiences with the health system. This explains why, for example, young people who are chronically or terminally ill are often described as having a level of maturity beyond their years, shaped to a large extent by their previous experiences with the health system, and with the necessity of facing situations and decisions which most young people of the same age will never have to experience.²⁵

Conclusions

2.35 Certain conclusions can be drawn with reasonable confidence based on the empirical and psychological research. First, groups of young people from their mid-teens have been shown to demonstrate cognitive or intellectual skills similar to those of the average adult for the purpose of understanding information relating to health care and weighing up alternative options for care. Secondly, the human brain is still developing physically during adolescence, and the effects, if any, of these physical developments on a teenager’s decision-making skills are not clear. Thirdly, there are a number of common characteristics of being young which can be explained according to theories of young people’s social and emotional development. These characteristics include an emphasis on peer acceptance and on the short-term consequences of actions, and a tendency towards impulsive or risk-taking behaviour. The effects of these characteristics on young people’s decision-making skills are not clear, although some studies suggest that they do tend to detract from a young person’s ability to make independent decisions and exercise a “wise” or “mature” choice.

2.36 It is clear that there is still much more that is not known about young people’s decision-making capacities than is known. There is no conclusive or definitive answer to the question of whether empirical evidence justifies limiting young people’s right to make health care decisions. To a large degree, the answer depends on the criteria to be applied in assessing decision-making competence. To what extent should a legal threshold for competence look beyond young people’s cognitive or intellectual abilities to a broader notion of their social and emotional maturity? After all, the assessment of an adult’s legal competence to consent to treatment focuses on his or her intellectual abilities, that is, the ability to understand information, at least in a broad way, and make a choice based on that information. An assessment of legal incompetence in an adult may be based on a finding that the adult’s ability to choose was impeded because of, for example, a delusion or some other form of mental illness.²⁶ But the extent to which an adult’s choice is affected by his or her emotional and social maturity and life experience is not a matter for consideration.

Recognising young people’s decision-making capacity in other areas of the law

2.37 The law limits young people’s ability to make choices in other areas of their lives beyond their health care. These restrictions are based on the same belief that young people need protecting from their own immature judgment. However, there is inconsistency in the ages set by the law for recognising young people’s right to decide about these various aspects of their lives. Below are a few examples.

2.38 The age of consent to sex. In New South Wales, it is an offence to have sex with a person who is below the age of 16, whether that person is of the same or the opposite sex, and it is no defence that the person consented.²⁷ Fixing an age below which the law will not recognise the validity of a young person’s consent to sex has been described as an attempt to protect young people from physical and psychological harm caused by engaging in sex before they are mature enough to make a proper judgment about it, as well as preventing their sexual exploitation by older people.²⁸ The age of consent is said to amount to a determination about when young people should be allowed to exercise autonomy and freedom of choice in sexual relationships.²⁹ There continues to be disagreement about the age at which the law should recognise the validity of a young person’s consent to sex, with suggestions that the age should be lowered to 15, or even 14.³⁰

2.39 Consent to marriage. A person must usually be 18 (that is, an adult) to be allowed to marry. Young people between the ages of 16 and 18 may be allowed to marry if they have the consent of their parents or guardians, as well as authorisation from a court. The court may dispense with the need for parental consent.³¹

2.40 Alcohol. There is no absolute prohibition on young people drinking alcohol. It is an offence, however, for a person below the age of 18 to possess or consume alcohol in a public place without a reasonable excuse or without the supervision of a responsible adult.³² It is also an offence for a person below the age of 18 to be in a restricted area of a licensed premise,³³ and to be served or consume alcohol on a licensed premise.³⁴

2.41 Cigarettes. Young people do not commit an offence by smoking cigarettes. However, a young person in possession of cigarettes in a public place may have them seized by the police.³⁵ A person who buys cigarettes for a person below the age of 18, or who sells cigarettes to a person below the age of 18, is guilty of an offence.³⁶

2.42 Driving. A young person is eligible for a learner’s permit to drive a car under adult supervision at the age of 16, and a provisional licence at 17. Recent changes to the P-plate system in New South Wales impose tighter restrictions on provisional drivers, such as restricting the number of passengers driven by a P-plate driver at night time. These changes are aimed at reducing the disproportionately high number of fatalities and serious injuries among drivers in the 17-25 year age group, which have been partly attributed to inexperience, diminished perception of risk, and dangerous driving under peer pressure.³⁷

2.43 The age of criminal responsibility. A person below the age of 10 cannot be charged with a criminal offence.³⁸ A person between the ages of 10 and 14 cannot be convicted of an offence unless it is shown (among other things) that the person knew that what he or she was doing was seriously wrong and not just naughty. This is the principle of doli incapax. There have been recent campaigns in the media to lower the age of criminal responsibility, in response to a couple of cases involving children committing what were described as particularly heinous, “adult” crimes.³⁹

2.44 Instructing a legal representative in care proceedings. The Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that a person below the age of 12 is to be presumed incapable of giving proper instructions to his or her legal representative in care proceedings in the Children’s Court, and that a person aged 12 or above is presumed capable of doing so. Both presumptions are rebuttable.⁴⁰

2.45 These examples indicate that the law does consistently limit young people’s exercise of choice because of a belief that it is necessary to do so in order to protect them from their immaturity, but that it also consistently recognises that they are capable of maturing to a sufficient level to allow them to act autonomously below the age of adulthood. The law is not consistent, however, in the ages it identifies as signifying sufficient maturity. Perhaps the discrepancies in the ages of consent may be explained on the basis that the level of maturity required to exercise choice properly differs according to the particular type of activity in question. Or perhaps these discrepancies can be explained on the basis that they reflect an essentially moral choice about when young people should be given responsibility, for example, to be sexually active, or criminally liable. Or perhaps they reflect pragmatic policy decisions made to respond to the realities of young people’s lives (for example, that many people below the age of adulthood are sexually active).

THE PRACTICAL BENEFITS OF INVOLVING THE YOUNG PATIENT

2.46 Irrespective of young people’s current legal entitlements, it is consistently argued in the literature,⁴¹ and reiterated in the Commission’s consultations with health practitioners,⁴² that it is best practice to involve young people in making decisions about their health care, as well as their parents and other family members. Agreement with the decision by both the young patient and his or her family is usually crucial to ensuring co-operation with the treatment plan. Opposition to the treatment decision, either by the young person affected, or his or her family, or both, generally hinders the effectiveness of the treatment. This may be especially so when the treatment involves long-term follow-up care, such as taking medication for the rest of the young person’s life. Perhaps particularly in the case of mental illness or emotional or behavioural disturbances, improvement in a young person’s health can be obstructed if the young person or a parent refuses to accept that the young person has a problem that will benefit from professional help.⁴³ While the law allows health practitioners to use reasonable force to provide a young person with treatment for which a valid consent has been obtained (either by the young person’s parents or by a court), there are likely to be practical difficulties in administering treatment that the young person opposes. For this reason, whatever the law’s approach may be in delineating the entitlements of young people and their families in the decision-making process, the best therapeutic benefits for the young person will usually be gained by engaging him or her in the treatment decision.

THE ROLE AND RESPONSIBILITIES OF PARENTS AND OTHER CAREGIVERS

Ideally the relationship between parent and infant involves an awareness of a kind of union between people which is perhaps more suitably described in poetic-spiritual language than in analytic moral terminology. We share our selves with those with whom we are intimate and are aware that they do the same with us.⁴⁴

2.48 Most loving parents would see themselves as playing a pivotal role in their children’s health care, just as they would consider themselves to be primarily responsible for ensuring that their children’s health needs are appropriately met. Families from non-Western cultures may find the notion of recognising a young person’s autonomy particularly puzzling if their own culture emphasises the parent’s role as decision-maker in the family, and tends not to view adolescence as a stage of natural separation from one’s parents.⁴⁵

2.49 Australian law recognises the primacy of a parent’s responsibilities and authority, as against the rest of the world, over his or her child, if that child is below the age of 18.⁴⁶ But it has also made clear that parents’ authority over their minor children is not absolute, and that their right to control their children does not exist for their benefit but rather for the benefit of their children while their children’s immaturity requires their control and protection.⁴⁷ The law will generally recognise the validity of parents’ consent because it considers them to be the most appropriate people to decide on behalf of their children who lack capacity to make that decision themselves. Any right to decide on behalf of their child derives from a parental duty to care for their child, and exists only as long as it is needed to protect him or her, and provided it can be seen as promoting the child’s best interests.⁴⁸ As such, it cannot be said that parents have an inalienable and legally enforceable right relating to the upbringing of their children.⁴⁹ While the courts continue to emphasise the role of parents as the adults primarily responsible for their child’s safety, health and well-being, it is also now expected that family life, and a parent’s role in that family, will accommodate respect for young people’s growing maturity and their right to participate in decisions affecting them.⁵⁰

2.50 Of course, not everyone may agree with the courts’ views of modern family dynamics. At its best, the family provides its individual members with a strong sense of identity and belonging, and satisfies a fundamental human desire for intimacy and tenderness. By focusing on the individual entitlements of the maturing young person, the law arguably detracts from the crucial role that the parent-child relationship plays in that child’s development and in the well-being of the family as a whole. It has been said that, instead, the law should give loving parents a wide discretion to guide their children and pursue family goals that extend beyond the goals of its individual members.⁵¹ Those who argue for legal recognition of the decision-making rights of mature young people may be misguided to the extent that they assume that maturity and decision-making capacity can be measured and defined according to a single, fool-proof standard. In reality, denial of the parent’s right to decide may come down to the treating health practitioner making a personal judgment about a young person’s maturity, and whether the care in question serves that young person’s best interests. This effectively replaces the judgment of parents, who care for their child on a daily basis, with that of a health practitioner, who is much less involved, and has less of a vested emotional interest, in the young person’s well-being. A law which imposes some threshold level of competency for allowing young people to make their own health care decisions arguably denies parents the opportunity to help their children develop life skills necessary for their longer-term autonomy. The same objection could be applied to the intervention of the State, through its courts, in decisions affecting a young person’s health care. To many lay people, the idea that an individual judge, to whom a young person is a complete stranger, might know better than a loving parent what decision will best serve that young person’s welfare will seem ludicrous.

2.51 In response, it can be argued that respect for a young person’s autonomy and the role of parents in guiding their children are not necessarily mutually exclusive. While parents’ responsibilities and roles may change to meet their maturing child’s attempts at asserting independence, they can nevertheless continue to play a pivotal, though different, part in their child’s life. It is true that the intimate and intense nature of the parent-child relationship must necessarily mean that parents will usually intuitively judge what is in their child’s best interests. The law recognises this, and for this reason appoints parents as the primary decision-makers for their children. But there must also be times when a parent’s emotional involvement in his or her child’s life can cloud that parent’s judgment about what serves the young person’s best interests. An example of this is where a young person is terminally ill, and decisions must be made about whether to provide him or her with palliative care or pursue a more aggressive form of treatment. Faced with that choice, what parent’s first reaction would not be to want to fight to keep his or her child alive, on the chance, no matter how miniscule, of a cure? But such a decision may not be considered by many, such as the treating practitioners or even the young person himself or herself, to serve the young person’s best interests. In situations like this, it may be useful to be able to resort to a less emotionally involved arbiter, such as the court, to weigh up the choices.⁵²

SERVING THE YOUNG PERSON’S “BEST INTERESTS”

2.52 There is a principle now well established in Australian and international⁵³ law that the application of a law or decision relating to a young person must serve his or her best interests or, put differently, that the young person’s welfare is to be the paramount consideration. For example, at the federal level, the Family Law Act 1975 (Cth) stipulates that the application of that Act in relation to children, including the making of various orders regarding residence and contact with parents, are to serve the child’s best interests as the paramount concern.⁵⁴ The State’s child protection legislation also expressly nominates as its first priority the best interests of the child.⁵⁵ In addition to specific expressions of the best interests principle in legislation, the State’s Supreme Court retains a general power, derived from the common law, to intervene in decisions affecting young people in order to protect their best interests or ensure that their welfare is protected.⁵⁶

2.53 The Supreme Court’s general power allows it to intervene in decisions about a young person’s health care in order to ensure that a particular health care decision serves the young person’s best interests. The application of the best interests principle to the health care setting has resulted in the Supreme Court overriding a parent’s or young person’s decision if it considered it to be contrary to the young person’s long-term physical health. To refer again to the example cited at the beginning of this chapter, the Court ultimately rejected the young girl’s decision to refuse a heart transplant and itself authorised the hospital to carry out the operation on the basis that this was what was best for the young patient. Similarly, in cases where young people or their parents have refused life-saving health care for the young person because it is contrary to their religious beliefs, the courts have overridden that decision and authorised the procedure.⁵⁷ It seems that the courts will typically err on the side of preserving the young person’s life even if this means going against his or her spiritual convictions. This has been justified on the basis that a young person may later change his or her mind, and that the court should allow him or her the chance to survive in anticipation of that possibility:

When making this decision, which is a decision of life or death, I have to take account of the fact that teenagers often express views with vehemence and conviction – all the vehemence and conviction of youth! Those of us who have passed beyond callow youth can all remember convictions we have loudly proclaimed which now we find somewhat embarrassing. I respect this boy’s profession of faith, but I cannot discount at least the possibility that he may in later years suffer some diminution in his convictions …⁵⁸

2.55 Sometimes, the operation of the best interests principle requires the courts to make a judgment about whether a young person’s quality of life is worth saving, or whether death would better serve his or her interests. This predicament has usually arisen in cases involving very young children who suffer gross disabilities that greatly impede their quality of life. While Australian law does not countenance positive steps to be taken to end another person’s life, in some instances life-saving treatment may be lawfully refused. The courts may intervene in a decision either to refuse or accept such treatment where a young person is terminally ill or severely physically disabled and suffering pain as a result, with small prospects of long-term survival or improvement. There are no clear-cut rules about the degree of pain and suffering or level of disability that will give rise to a court authorising the end of life-saving treatment. It has been said that the presumption in favour of preserving life is strong, but that there are extreme cases where to prolong treatment would be so cruel as to be intolerable. A child suffering from Down syndrome has not been considered such an extreme case as to justify the rejection of life-saving treatment.⁶⁰ But in other instances, a court has authorised the refusal of such treatment for a child suffering severe brain damage, without mobility, sight, speech or hearing,⁶¹ or for a terminally ill child who requires ventilation causing increasing distress.⁶² Judges vary in the ways they approach the task of deciding whether or not it is in the best interests of a young person to be allowed to die. Some have considered whether life would be intolerable to this particular child, while others have used phrases such as “demonstrably awful” as a requirement which must be shown to apply to a child’s life before the court will allow that life not to be saved.⁶³

2.56 In protecting a young person’s best interests, the Supreme Court is empowered to use reasonable force and detention in order to ensure that a young person receives treatment which he or she is refusing but which the Court has decided should occur.⁶⁴ The Court also has the power to order a hospital or health practitioner to take positive steps to provide treatment to a patient, even if the hospital or health practitioner does not agree with the administration or continuation of such treatment.⁶⁵

2.57 It is a common criticism of the best interests principle that it is too vague or indeterminate. While in theory many might support the notion that decisions concening young people should seek to further their best interests, what does that term really mean and who should get to decide on its content? In the absence of any pre-determined criteria, it must be impossible for the person assessing a young person’s best interests not to impose his or her own values and beliefs into that assessment:

[T]he best interests principle does no more than identify the person whose interests are in question: it does not assist in identifying the factors which are relevant to the best interests of the child … … … in the absence of legal rules or a hierarchy of values, the best interests approach depends upon the value system of the decision-maker. Absent any rule or guideline, that approach simply creates an unexaminable discretion in the repository of the power.⁶⁶

2.59 Some critics of the best interests principle have argued that it should have no place at least in the decision-making process for young people with sufficient maturity to be competent to make their own health care decisions.⁶⁸ Others have suggested that the courts should follow what would be arguably a more honest approach, openly admitting to a public policy which prioritises the protective duty of society towards its young people and which consequently will not allow them to act on decisions which may endanger their physical health. This would be preferable to attempting to justify State intervention by resorting to (and distorting) legal notions of competence and best interests.⁶⁹

2.60 The formulation of new legislation dealing with health care decision-making for young people requires consideration of the place and content of the “best interests” principle in the hierarchy of principles underlying the Commission’s legislative scheme. The best interests principle is firmly entrenched in our laws relating to young people and to the treatment of vulnerable members of society. The Supreme Court’s power, derived from this principle, is a wide-sweeping and general one. Although it could be excluded by legislation from the decision-making process for young people’s health care, or aspects of it, it would require a sound basis for doing so, given the centrality of the best interests principle to our legal system.

2.61 In other places, legislation has made the best interests principle one of the criteria for determining a young person’s decision-making competence, and has given to medical practitioners the responsibility of determining whether a decision or treatment serves a young person’s best interests when assessing whether or not the young person in question is competent.⁷⁰ It has been said that the treating health practitioner is the person best placed to make a determination about whether or not a particular treatment is in the young person’s best interests,⁷¹ and it seems that courts are generally likely to follow the advice of the treating medical practitioners about whether proposed care serves a young person’s best interests.⁷²

2.62 Alternatively, some legislation, such as the Family Law Act 1975 (Cth), seeks to regulate the exercise of the courts’ discretion in determining best interests by providing for guidelines to direct the courts’ attention to consider specified matters.⁷³ This approach has gained some support on the basis that, at least in theory, it better reflects general community values, as expressed by Parliament, about what serves a child’s best interests rather than relying to such a large degree on the subjective values of the individual judge. It has also been argued that reliance on such guidelines in the exercise of the courts’ discretion will allow for greater consistency in similar cases.⁷⁴ On the other hand, the application of legislative guidelines such as those under the Family Law Act may prove controversial, generating disagreement and debate about their interpretation and the exact weight that the courts should place on the factors specified in the guidelines.⁷⁵

2.63 Ultimately, we do not see any advantage in modifying or attempting to clarify in legislation the best interests principle as it applies to decisions concerning young people’s health care. We understand the objections to the best interests principle. In particular, we accept that the application of the principle is vulnerable to the subjective interpretation of the individual judge who at times cannot help but inject his or her own value system into the decision-making process. Although there are many other areas of the law where judges exercise a discretion, this area is perhaps unique in so far as it typically involves significant moral and non-legal issues. While we accept these objections, we nonetheless take the view that this is an area where there may sometimes be a need for a third party to intervene in decisions where there is disagreement about a young person’s health care, and that, on balance, it is preferable that the third party be a judicial officer who is removed entirely from the circumstances of the particular case. And of course, the judge’s discretion is not completely unfettered, in so far as he or she will have regard to any expert evidence relating to the best interests question in a particular case, and will also take account of previous applications of the best interests principle in similar cases. Discretionary decisions are also reviewable on appeal. Although such review is limited in scope, the appeal process is likely to iron out any idiosyncratic approach. We do not think that there is any benefit in recommending the introduction of legislative guidelines to assist in the application of the best interests principle since to do so is more likely to create new disagreement and confusion about their interpretation rather than provide clarification.

2.64 We take the view that the best interests principle should continue to operate, as it does now, as a safety net to protect young people even after they have been found legally competent to make health care decisions for themselves. To do so obviously is to treat them in a way that is different from the way in which the law treats competent adults, whose decisions are generally respected even if they seem foolish or self-destructive. Some may object that the Commission is taking a paternalistic approach, but we have concluded that it is appropriate for the law to take a protective role over young people even as they mature. In the discussion that follows, we discuss the views we have formed based on the psychological evidence, and we refer to the fact that there is good reason to believe that young people, even as they reach the intellectual or cognitive capacities of adults, still as a group tend to lack a certain level of maturity and world experience because of their youth. For this reason, it is appropriate that the law continue to protect them from harmful decisions that may have significant long-term effects, by subjecting their decisions to the potential scrutiny of the courts according to the best interests principle.

CONCLUSIONS

2.65 The preceding discussion has sought to come to terms with the issues at the centre of the debate about the decision-making process for young people’s health care. In designing a legislative framework to regulate this process, the Commission must decide whether it should continue the traditionally protective approach of the law, or whether, and to what extent, it should recommend legislation that provides young people with greater decision-making autonomy. In doing so, it must also consider what the appropriate role of parents and caregivers should be under this framework. We have come to the following conclusions.

2.66 A person’s right to decide about his or her health care reflects a fundamental principle of the law that we are autonomous beings with an entitlement to make our own choices. This principle is so important to our legal system and to our society that, for adults, it takes precedence over the requirement that the law respect and preserve the sanctity of life.

2.67 Society now perceives young people as individuals with rights and points of view, and it places great emphasis on the right of young people to participate. In the context of this growing emphasis on young people as rights bearers, and given the importance which we place on individual autonomy, a law that interferes with a young person’s autonomy must have strong grounds for doing so.

2.68 The law recognises that young people may be sufficiently mature to make decisions in respect of many aspects of their lives, such as their sexual life. However, there is no single age which the law deems as signifying sufficient maturity for general decision-making autonomy.

2.69 There is strong empirical evidence to suggest that, generally speaking, young people from their mid-teens do not differ significantly in their cognitive abilities from adults, and are as capable as adults of understanding and processing information relating to health care decisions.

2.70 On the other hand, there is also evidence to suggest that teenagers’ behaviour can be affected by a number of features that characterise the developmental stages of adolescence. While not conclusive about the impact of these characteristics on their decision-making skills, there is enough evidence to suggest that teenagers are still developing in their social and emotional maturity, and that this may cause them to view their choices in a different way from the average adult. However, the application of the adult test for competence to consent to treatment would not normally focus on these aspects of maturity that go beyond cognitive abilities, and so it is open to question whether the law should apply a separate (and more stringent) test for competence to young people to allow consideration of these other matters.

2.71 On balance, the Commission thinks that it should. We agree that our new legislation should follow in the direction first set in the cases of Gillick and Marion, and which now forms part of our law. It is consistent with modern social views of young people and with general legislative trends to acknowledge young people’s growing maturity by recognising their entitlement to make decisions before they have become legal adults. Our legislative framework should reflect this and, indeed, that position is expressed in the first three principles set out in Recommendation 2. Nevertheless, the new legislation should recognise that entitlement only on satisfaction that young people are capable of exercising their choice with a certain level of maturity, and in doing so we concede that we are expressing a higher level of competence than that spelt out for adults. We have two reasons for doing so.

2.72 First, the law assumes a certain level of social and emotional maturity in adults. In reality, of course, adults might differ significantly in the range of their life experiences and in their experience in decision-making, as well as in other indicators of maturity such as a sense of self and ability to resist peer pressure. But these differences can be explained according to individual temperaments and idiosyncrasies. It would not be feasible to deny adults a claim to autonomy based on these individual differences. By contrast, young people as a class have been shown to be less developed than the average adult in many aspects of maturity.⁷⁶ While they may also demonstrate individual differences in the extent to which they have developed socially and emotionally, many features of adolescent behaviour can be explained by a progress through general developmental stages, and it is reasonable to believe that as a class of people they will be more likely to exercise immature judgment because of their youth. It is appropriate for the law to protect young people from decisions made with insufficient maturity because they can be considered as a class (rather than just according to individual differences) to have a greater tendency than the general population to have a diminished ability to exercise independent and mature choices.

2.73 A second justification for limiting young people’s autonomy in respect of making health care decisions is that in this way the law can better promote their long-term autonomy.⁷⁷ Because decisions about health care can often be life-changing, and the consequences of living with those decisions can be permanent and serious, it is appropriate for the law to protect young people from making decisions made with insufficient maturity which they may later regret and which may hinder their longer life chances. Of course, adults can also live to regret decisions with the benefit of hindsight but, again, those regrets are more likely to result from individual shortcomings rather than reasons attributable to their youth.

2.74 While the Commission’s legislative framework seeks to recognise young people’s entitlement to autonomy, it is also true that it ultimately errs on the side of protecting them. It does this by imposing a stricter standard of competence and by scrutinising any decision about their health care to see whether it promotes their “best interests”, as reflected in the sixth principle appearing in Recommendation 2. The particulars of these aspects of the framework are discussed in Chapter 5.

2.75 The framework also addresses the role of parents and caregivers in the decision-making process by reinforcing and clarifying the law’s current views of parents’ rights and responsibilities. It acknowledges the primary role of parents in decisions about their children’s health care to the extent that this promotes their children’s best interests (as defined in subsequent chapters). The third principle included within Recommendation 2 reflects this position.

2.76 Recommendation 2 articulates the principles that we have relied on in drafting our recommendations. These principles have been included within the recommended legislation as an aide in its interpretation and application. The details of these principles have been mostly referred to in the preceding discussion. To a large degree, Recommendation 2 is drawn from the principles articulated in the Children and Young Persons (Care and Protection) Act 1998 (NSW)⁷⁸ and the United Nations Convention on the Rights of the Child,⁷⁹ which both place importance on the notion of respect for young people’s developing maturity while at the same time recognising the need to protect their best interests and reinforce the significant role of parents and family in young people’s lives. It is worth noting that Recommendation 2 provides for the young person’s best interests to be the primary consideration, which is consistent with the wording in s 9 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). This contrasts with Article 3 of the Convention on the Rights of the Child, which provides that the best interests of the child shall be a primary consideration. We have deliberately chosen to use “the” instead of “a” in our provision, as we consider the young person’s best interests to be the overriding consideration in the interpretation and application of the recommended legislation, for which there can be no other consideration of equal or greater importance.

Recommendation 2

The legislation should include a provision setting out the following principles to be applied in the interpretation and application of the legislation:
• Young people should be informed about matters relating to their health care, to the extent and in a manner appropriate to their age and maturity, and should be given the opportunity to express their views freely about these matters, and their views should be given due weight in accordance with their age and maturity.
• The developing autonomy of the young person should be acknowledged.
• Respect should be given to the responsibilities and role of parents in the health care of their child or, where applicable, the members of the extended family or persons legally responsible for the young person, in a manner consistent with the evolving capacities of the young person.
• Account should be taken of the culture, disability, language, religion and sexuality of the young person and, if relevant, those with parental responsibility for the young person.
• Access by young people to appropriate health care should be promoted.
• The best interests of the young person should be the primary consideration.

1. Re M [1999] 2 FCR 577, 581.

2. This assumes that her competency went unchallenged; see para 1.7.

3. See consultations with Dr S Towns, Department of Adolescent Medicine, Children’s Hospital at Westmead; Dr M Kang, Department of General Practice, University of Sydney; Department of Psychological Medicine, Children’s Hospital at Westmead; Dr S Trethewie, Department of Palliative Care, Sydney Children’s Hospital at Randwick; Department of Pain and Palliative Care, Children’s Hospital at Westmead. And see Public Forum on Minors’ Consent to Medical Treatment, Parliament House, Sydney, 20 November 2006.

4. See, for example, United Nations, Convention on the Rights of the Child, opened for signature 20 November 1989 (entered into force 2 September 1990), particularly arts 5, 12, 24. See declaration of the Commonwealth Attorney-General on 22 December 1992 that the Convention on the Rights of the Child was an international instrument relating to human rights and freedoms for the purpose of s 47 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). That declaration came into effect on 13 January 1993: Commonwealth of Australia Gazette (No GN1, 13 January 1993), 85-107. See too Commission for Children and Young Persons Act 1998 (NSW) s 10. The European Convention on Human Rights also recognises and protects many of these interests as human rights: see Convention for the Protection of Human Rights and Fundamental Freedoms, art 1 (right to life), art 8 (right to privacy and family life), art 10 (right to freedom of expression). See discussion of the European Convention by Justice Silber in Axon v Secretary of State for Health and Family Planning Association [2006] QB 539 (Queen’s Bench Division, Administrative Court, Silber J).

5. For a fuller discussion of the history of the current law, see Chapter 4, especially para 4.7-4.8.

6. See J Bridgeman, “Young people and sexual health: Whose rights? Whose responsibilities?” [2006] Medical Law Review 418; A Morris, “Gillick, 20 years on: arrested development or growing pains?” (2005) 21 Professional Negligence 158; G Douglas, “The retreat from Gillick” (1992) 55 Modern Law Review 569.

7. See Axon v Secretary of State for Health and Family Planning Association [2006] QB 539, (Queen’s Bench Division, Administrative Court, Silber J). See para 4.21.

8. R v D [1984] AC 778, 804-805 (Lord Brandon).

9. See United Nations, Convention on the Rights of the Child, art 12.

10. See, for example, the European Convention on the Exercise of Children’s Rights, opened for signature 25 January 1996, CETS No 160; African Charter on the Rights and Welfare of the Child, OAUDoc.CAB/LEG/24.9/49 (1990) (entered into force 29 November 1999). For a discussion of the children’s rights movement as an international social phenomenon, see, for example, G Van Bueren, “The international law on the rights of the child” (1995) 35 International Studies in Human Rights, Ch 1; D Hodgson, “The historical development and ‘internationalisation’ of the children’s rights movement” (1992) 6 Australian Journal of Family Law 252; J Eekelaar, “The emergence of children’s rights” (1986) 6 Oxford Journal of Legal Studies 161.

11. P Parkinson, “The child participation principle in child protection law in New South Wales” (2001) 9 International Journal of Children’s Rights 259.

12. See, for example, NSW, Office of the Children’s Guardian, Benchmark policies, Philosophy of care statement, program objectives, and program criteria.

13. The majority in Marion’s case approved the Gillick test on the basis that it “accords with experience and with psychology”: see Marion’s case (1992) 175 CLR 218, 237-238 (Mason CJ, Dawson, Toohey, and Gaudron JJ).

14. L Thomson, “Whose right to choose? A competent child’s right to consent to and refuse medical treatment in New Zealand” (2001) 8 Canterbury Law Review 145, 161.

15. J Potter, “Rewriting the competency rules for children: full recognition of the young person as rights-bearer” (2006) 14 Journal of Law and Medicine 64, 85.

16. The literature in this area is extensive. See, for example, J Piaget and B Inhelder, The Psychology of the Child (1969); L A Weithorn and S B Campbell, “The competency of children and adolescents to make informed treatment decisions” (1982) 53 Child Development 1589; T Grisso and L Vierling, “Minors’ consent to treatment: a developmental perspective” (August 1978) Professional Psychology 412; L F Ross, “Health care decision-making by children: is it in their best interests?” (1997) 27 Hastings Centre Report 41; R Duncan, Holding your breath: predictive genetic testing in young people (Doctoral thesis, Departments of Paediatrics and Public Health, The University of Melbourne, July 2005) especially Ch 3; F H Richards, “Maturity of judgement in decision making for predictive testing for nontreatable adult-onset neurogenetic conditions: a case against predictive testing of minors” (2006) 70 Clinical Genetics 396; T O’Lonergan and J Zodrow, “Pediatric assent: subject protection issues among adolescent females enrolled in research” (Summer 2006) Journal of Law, Medicine, and Ethics 451; T Fundudis, “Consent issues in medico-legal procedures: how competent are children to make their own decisions?” (2003) 8 Child and Adolescent Mental Health 18; L Steinberg and E Cauffman, “Maturity of judgment in adolescence: psychosocial factors in adolescent decision making” (1996) 20 Law and Human Behaviour 249; L Steinberg and E Cauffman, “(Im)maturity of judgment in adolescence: why adolescents may be less culpable than adults” (2000) 18 Behavioral Sciences and the Law 741; V Reyna and F Farley, “Risk and rationality in adolescent decision making: implications for theory, practice and public policy” (Sep 2006) 7 Psychological Science in the Public Interest 1; E Scott, N D Reppucci and J Woolard, “Evaluating adolescent decision making in legal contexts” (1995) 19 Law and Human Behavior 221.

17. The fourth lobe, the occipital lobe, is associated with the brain’s sensory functions, particularly vision, and is the most developed of the lobes from an early age.

18. See S Czech, “Explanations for antisocial behaviour in adolescents: the role of hormones on mental processes” (Paper presented at the Annual Australian and New Zealand Adolescent Health Conference, Sydney, 2006).

19. L Weithorn and S Campbell, “The competency of children and adolescents to make informed treatment decisions” (1982) 53 Child Development 1589.

20. T Grisso and L Vierling, “Minors’ consent to treatment: a developmental perspective” (1978) 9 Professional Psychology 412. See also A E Buchanan and D W Brock, Deciding for others: the ethics of surrogate decision making (1990) Ch 5. See the discussion of the literature in R Duncan, Holding Your Breath: Predictive Genetic Testing In Young People (Doctoral thesis, Departments of Paediatrics and Public Health, The University of Melbourne, July 2005), [3.2.2.1].

21. See E Cauffman and L Steinberg, “(Im)maturity of judgment in adolescence: why adolescents may be less culpable than adults” (2000) 18 Behavioral Sciences and the Law 741.

22. See J Santelli, A S Rogers, W Rosenfeld, R DuRant, N Dubler, M Morreale, A English, S Lyss, Y Wimberly, A Schissel, “Guidelines for adolescent health research: a position paper of the Society for Adolescent Medicine” (2003) 33 Journal of Adolescent Health 396, especially 399.

23. E Scott, N D Reppucci and J Woolard, “Evaluating adolescent decision making in legal contexts” (1995) 19 Law and Human Behavior 221, 230-231.

24. The study relied on data obtained from questionnaires answered by a group of eighth, 10th, and 12th grade high school students and college students, all from Philadelphia. Overall, the sample consisted of more than 1,000 adolescents and adults aged between 12 and 48. The conclusions flowing on from this study were directed specifically at any implications it may have for policies relating to juvenile offenders. See E Cauffman and L Steinberg, “(Im)maturity of judgment in adolescence: why adolescents may be less culpable than adults” (2000) 18 Behavioral Sciences and the Law 741.

25. See D R Freyer, “Care of the dying adolescent: special considerations” (2004) 113 Pediatrics 381. See also Dr S Trethewie, Department of Palliative Care, Sydney Children’s Hospital at Randwick, Consultation; and Department of Pain and Palliative Care, Children’s Hospital at Westmead, Consultation.

26. See, for example, Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290; Re JT (Adult: Refusal of Medical Treatment [1998] 1 FLR 48; Rochdale Healthcare (N.H.S.) Trust v C [1997] 1 FCR 274; Re W [1993] Fam 64.

27. See Crimes Act 1900 (NSW) s 66A-66D. Section 77 of the Crimes Act provides that it is no defence to a charge under a number of sections, including s 66A-66D, that the victim gave consent.

28. Australia, Standing Committee of Attorneys General, Model Criminal Code Officers Committee, Model Criminal Code, Chapter 5, Sexual Offences Against The Person, Report (1999) 119.

29. Australia, Standing Committee of Attorneys General, Model Criminal Code Officers Committee, Model Criminal Code, Chapter 5, Sexual Offences Against The Person, Report (1999) 119.

30. The Model Criminal Code Officers Committee initially suggested that the general age of capacity to consent to sex be fixed at 16. It subsequently decided against trying to fix an age because of the strong and passionate disagreement that any age suggested invoked. It concluded that the issue was a matter of intense debate in the community, and that it was a moral as well as a legal question: see Australia, Standing Committee of Attorneys General, Model Criminal Code Officers Committee, Model Criminal Code, Chapter 5, Sexual Offences Against The Person, Report (1999) 122-123. In previous years, the Royal Commission on Human Relationships had recommended a general age of consent to sex be fixed at 14: see Australia, Royal Commission on Human Relationships, Final Report (1977) vol 5, 210.

31. See Marriage Act 1961 (Cth) s 11-13.

32. See Summary Offences Act 1988 (NSW) s 11.

33. See Liquor Act 1982 (NSW) s 116A.

34. See Liquor Act 1982 (NSW) s 114-115.

35. See Public Health Act 1991 (NSW) s 58(1).

36. See Public Health Act 1991 (NSW) s 58A, 59.

37. See Road Transport (Driver Licensing) Regulation 1999 (NSW) cl 15CA. See also NSW Road Traffic Authority, Annual Report 2007, 48; “P-plate restrictions to be considered” Sydney Morning Herald (Sydney), 25 November 2006, 1-2; “Over 25s to be exempt from P-plate restrictions” ABC News Online, 10 June 2007. See also NSW Law Reform Commission, Young Offenders, Report 104 (2005) [1.4]-[1.7].

38. Children (Criminal Proceedings) Act 1987 (NSW) s 5. For the special rules that apply to sentencing young offenders (offenders below 18), see NSW Law Reform Commission, Young Offenders, Report 104 (2005).

39. These campaigns culminated in a review by the Criminal Law Review Division of the law relating to doli incapax: see NSW, Attorney General’s Department, Criminal Law Review Division, Review Of The Law On The Age Of Criminal Responsibility Of Children (2000). See also H Figgis, Juvenile Justice: Some Recent Developments (Briefing Paper No 5/99, NSW Parliamentary Library Research Service, March 1999) and, more recently, “NSW Opposition wants criminal responsibility lowered to 10” ABC News Online, 2 March 2007.

40. See Children and Young Persons (Care and Protection) Act 1998 (NSW) s 99B and 99C.

41. For example, see M Kang and P Chown, GP Resource Kit: Enhancing The Skills Of General Practitioners In Caring For Young People From Culturally Diverse Backgrounds (NSW Transcultural Mental Health Centre and NSW Centre For The Advancement Of Adolescent Health, May 2004), 33-34, 87; NSW Centre for the Advancement of Adolescent Health, NSW Roundtable On Youth Development (September 2006); NSW Centre for the Advancement of Adolescent Health, NSW Department of Health, Access Study: Youth Health Better Practice Framework (2005); L Sanci, Adolescent Health Care Principles (Centre for Adolescent Health, Melbourne, 2001).

42. Department of Psychological Medicine, Children’s Hospital at Westmead, Consultation; Dr S Towns, Department of Adolescent Medicine, Children’s Hospital at Westmead, Consultation; Dr M Kang, Department of General Practice, University of Sydney, Consultation.

43. See Department of Psychological Medicine, Children’s Hospital at Westmead, Consultation. It was noted in this consultation that it is more often the parents who refuse to accept that their child needs professional help. See also Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644.

44. F Schoeman, “Rights of children, rights of parents, and the moral basis of the family” (1980) Ethics 6, 8.

45. Interview with J Zou, sessional clinician, Transcultural Mental Health Centre (Telephone interview, 21 September 2006).

46. See Family Law Act 1975 (Cth) s 61B, 61C. See also Secretary, Department of Health and Community Services v JWB (Marion’s case) (1992) 175 CLR 218, 235 (Mason CJ, Dawson, Toohey and Gaudron JJ) which identified the predecessor of these provisions of the Family Law Act, s 63E, as defining a young person’s guardian as the person with responsibility for that young person, as against the rest of the world.

47. See Secretary, Department of Health and Community Services v JWB (Marion’s case) (1992) 175 CLR 218 at 237 (Mason C J, Dawson, Toohey and Gaudron JJ) citing Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. See also T and F and Ors [1999] FLC 92-855, [66]. See generally Chapter 8 (special medical treatment).

48. See Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 170 (Lord Fraser); Marion’s case (1992) 175 CLR 218, 315-316 (McHugh J).

49. The Court of Appeal in Gillick [1985] 1 All ER 533, 2 WLR 413 found that any doctor giving contraceptive treatment to a girl below the age of 16 would be infringing the inalienable and legally enforceable right of parents relating to the custody and upbringing of their children. The House of Lords reversed this decision: [1986] AC 112. The High Court of Australia followed the House of Lords’ decision, considering it to be of persuasive authority and as forming part of the common law of Australia: see Marion’s case (1992) 175 CLR 218.

50. See Axon v Secretary of State for Health and Family Planning Association [2006] QB 539.

51. See L F Ross, “Health care decisionmaking by children: is it in their best interests?” (1997) 27 Hastings Center Report 41, 43.

52. See Dr S Trethewie, Department of Palliative Care, Sydney Children’s Hospital at Randwick, Consultation; Department of Pain and Palliative Care, Children’s Hospital at Westmead, Consultation.

53. The paramountcy of the child’s best interests is enshrined in the United Nations, Convention on the Rights of the Child, opened for signature 20 November 1989, art 3 (entered into force 2 September 1990).

54. See, for example, Family Law Act 1975 (Cth) s 60B, 60CA, 67V.

55. See Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9(a).

56. For a fuller discussion of the Supreme Court’s parens patriae jurisdiction as it relates to the law concerning young people’s consent to health care, see para 4.47-4.51.

57. For example, Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386; Re S [1994] 2 FLR 1065; Minister for Health v AS and Anor [2004] WASC 286 (teenaged Jehovah’s Witnesses refused blood transfusions); Re A [2001] Fam 147 (parents, who were Catholic, refused to authorise the separation of their conjoined twins on religious grounds). See also Re Paul [2008] NSWSC 960.

58. See Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386, 393 (Ward J). See too M Blake, “Religious beliefs and medical treatment: the challenge to patient consent” (2007) 19 Bond Law Review 26.

59. See M Blake, “Religious beliefs and medical treatment: the challenge to patient consent” (2007) 19 Bond Law Review 26.

60. In Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421.

61. In Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33.

62. Re C (A Minor) (Medical Treatment) [1998] Lloyd’s Rep Med 1.

63. See E Jackson, Medical Law: Text, Cases and Materials (2006), 977.

64. See Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644.

65. See Northridge v Central Sydney Area Health Service [2000] NSWSC 1241 (NSW Supreme Court, Common Law, O’Keefe J) (area health service ordered to provide necessary and appropriate medical treatment to preserve the life of a brain damaged adult man), cited in WK v Public Guardian (No 2) [2006] NSWADT 121 (NSW Administrative Decisions Tribunal General Division, Magistrate Hennessy (Deputy President), [15].

66. See Marion’s case (1992) 175 CLR 218, 270-271 (Brennan J dissenting). See too P Parkinson, “Comments: The values of parliament and the best interests of children – a response to Professor Chisholm” (2007) 21 Australian Journal of Family Law 213.

67. For example, see Re B (Wardship: Abortion) [1991] 2 FLR 426. See Chapter 8.

68. For example, see the comments of Madam Justice Russell in CU (Next friend of) v McGonigle [2003] ABCA 66, [33], and discussion in L Ferguson, “The end of an age: beyond age restrictions for minors’ medical treatment decisions” Paper prepared for the Law Commission of Canada (24 October 2004), 20-12; L Bunney, “The capacity of competent minors to consent to and refuse medical treatment” (1997) 5 Journal of Law and Medicine 52, 63.

69. See A Grubb, “Commentary on Re L (Medical Treatment: Gillick Competency)” (1999) 7 Medical Law Review 58, 61.

70. For example, Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 12(b)(i); Infants Act, RSBC 1996, c.223 (British Columbia) s 17(3)(b).

71. See Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 174 (Lord Fraser).

72. See E Jackson, Medical Law: Text, Cases, and Materials (2006), 977-978 (at least in relation to decisions about prolonging life-sustaining treatment).

73. See Family Law Act 1975 (Cth) s 60CC.

74. See P Parkinson, “The values of parliament and the best interests of children – a response to Professor Chisholm” (2007) 21 Australian Journal of Family Law 213.

75. See the debate between Professors Parkinson and Chisholm about the correct application of the guidelines to hypothetical cases: R Chisholm, “Making it work: the Family Law Amendment (Shared Parental Responsibility) Act 2006” (2007) 21 Australian Journal of Family Law 143; P Parkinson, “The values of parliament and the best interests of children – a response to Professor Chisholm” (2007) 21 Australian Journal of Family Law 213; R Chisholm, “A brief reply to Professor Parkinson” (2007) 21 Australian Journal of Family Law 229. Consider also the interpretation of the legislation by the Full Court of the Family Court in Goode and Goode (2006) 36 Fam LR 422; FLC 93-286.

76. See E Scott, N Reppucci, J Woolard, “Evaluating adolescent decision making in legal contexts” (1995) 19 Law and Human Behavior 221, 228.

77. See L F Ross, “Health care decisionmaking by children: is it in their best interests?” (1997) 27 Hastings Center Report 41, 42.

78. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9.

79. See in particular the United Nations, Convention on the Rights of the Child, art 3, 5, and 12.