Updates and background for this project (Digest)

• The scope of the new legislation
• The meaning of “parent”
• Defining a “young person”
• Defining “health practitioner” and “health service”
• Defining a “service”

THE SCOPE OF THE NEW LEGISLATION

3.1 The Commission’s proposed legislation will map out a framework for making decisions about a young person’s health care. There are four concepts that are central to this framework, and we have adopted the following terminology to refer to them:

• young person;
• health practitioner;
• health service; and
• parent.

3.3 Recommendation 3 below sets out the definitions of the new legislation’s key terms. The rest of this chapter discusses our approach to formulating these definitions.

RECOMMENDATION 3

The legislation should adopt the following definitions:

a young person means a person who is under the age of 18 years,

a parent means a person having parental responsibility for the young person,

parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children,

a health practitioner means a natural person who is registered under a health registration Act,

a health registration Act means any of the following Acts:


Chiropractors Act 2001

Dental Technicians Registration Act 1975

Dental Practice Act 2001

Medical Practice Act 1992

Nurses and Midwives Act 1991

Optical Dispensers Act 1963

Optometrists Act 2002

Osteopaths Act 2001

Pharmacy Practice Act 2006

Physiotherapists Act 2001

Podiatrists Act 2003

Psychologists Act 2001


or an Act prescribed by regulations as a health registration Act.

a health service is a service provided by a health practitioner and includes the following services, whether provided as public or private services:

(a) medical, hospital and nursing services,

(b) dental services,

(c) mental health services,

(d) pharmaceutical services,

(e) ambulance services,

(f) community health services,

(g) health education services,

(h) welfare services necessary to implement any services referred to in paragraphs (a)-(g),

(i) alternative health care services,

(j) forensic pathology services,

(k) a service prescribed by the regulations as a health service for the purposes of this legislation.

3.4 The definitions of “parent” and “parental responsibility” in Recommendation 3 adopt the meanings given to those terms in s 3 of the Children and Young Persons (Care and Protection) Act 1998.

3.5 The definition of “parental responsibility” in the Children and Young Persons (Care and Protection) Act 1998 is in turn taken from the Family Law Act 1975 (Cth),¹ which adopts this terminology in substitution for terms such as “guardianship” and “custody”, the language of the original legislation which is now considered outmoded in so far as it symbolises notions of ownership over children.²

3.6 Although the definition of a parent in the Children and Young Persons (Care and Protection) Act 1998 seems quite circular (a parent is a person with the responsibilities, etc of a parent), it can be understood to apply to those whom the law recognises as having parental status in relation to a young person. In most cases, this will be a biological or adoptive parent, subject to any court order limiting the scope of that status or responsibility or allocating aspects of that responsibility to someone else. It will also include a parent of a child artificially conceived.³ It will include the Minister for Community Services in cases where a young person has been placed in the Minister’s care following an order of the Children’s Court.⁴

3.7 The definitions of a parent and parental responsibility in the Children and Young Persons (Care and Protection) Act 1998 (NSW) have proved uncontroversial, and for this reason the Commission has chosen to adopt them in its new legislation. It makes sense to use terms that are already familiar to the courts and to those working in areas relating to child welfare, terms that have been applied and interpreted by State and federal courts for some time. And if the proposed legislation is implemented by way of enacting a new Part in a revamped Children and Young Persons (Care and Protection) Act 1998,⁵ then it will be an advantage to have adopted definitions that are consistent with the existing definitions of that Act.

3.8 In Chapter 6, we discuss the extent to which the law should recognise the role of caregivers other than parents in this decision-making process, and we make recommendations in that chapter for additional definitions of people who act in that caregiving role.

DEFINING A “YOUNG PERSON”

3.9 Recommendation 3 recommends that a “young person” be defined as a person below the age of 18. There are two points worth noting about this terminology. First, the Commission has preferred “young person” over “minor”, the term appearing in its original terms of reference. Secondly, we have recommended that “young person” be the term generally applied to all people below the age of 18, without use of the term, “child” to refer to a younger age group. In doing so, we have chosen not to adopt the distinction that is made between a child and young person in the Children and Young Persons (Care and Protection) Act 1998 (NSW).

The legislation should use the term “young person” rather than “minor”

3.10 The Commission was asked to review the law relating to a minor’s consent to medical treatment, the word “minor” being used to refer to a person who has not yet reached the age of legal adulthood (or the age of majority), which is 18.⁶ The Commission prefers the term “young person” to “minor”. Although “minor” is a convenient way to refer to someone whom the law does not yet treat as an adult, it is an overly legalistic term, and one which some (perhaps particularly young people themselves) may find pejorative.⁷

The legislation should not use the term “child”

3.11 “Child” was once the word used to refer to any person below the age of 18 in the predecessor to the Children and Young Persons (Care and Protection) Act 1998 (NSW). The Act was in fact called the Children (Care and Protection) Act 1987.⁸ The term, “young person” was first used in the Children and Young Persons (Care and Protection) Act 1998 (NSW) as a form of recognition of adolescence as a stage separate from childhood, on the way to adulthood.⁹ The 1998 Act brought in the distinction between a “child” (being a person below the age of 16) and a “young person” (aged 16 or over but below 18).¹⁰

3.12 The Commission does not wish to carry this distinction in terminology through to its proposed legislation. The introduction of the notion of a “young person” was progressive at the time, as it recognised the humanity and developing maturity of those aged below 18. However, we consider that the distinction has added unnecessary complication to the Children and Young Persons (Care and Protection) Act 1998 because it is not immediately obvious when a section of the legislation applies to a specific age group, or to all people below the age of 18, without referral back to the initial definitions at the beginning of the Act. More fundamentally, we consider “young person” now to be a more appropriate way of referring to all those aged below 18, not just teenagers. Some may now find the word “child” patronising and demeaning, especially perhaps those on the brink of puberty. “Young person” is a term better able to recognise the individuality and humanity of people below the age of 18.

DEFINING “HEALTH PRACTITIONER” AND “HEALTH SERVICE”

Looking beyond doctors and dentists?

3.13 The terms of this reference are limited to a review of the law of consent to medical treatment. The Commission focused its initial discussion on medical treatment as that term is conventionally understood, that is, as a service provided by a registered doctor or a person working under the ultimate supervision of a registered doctor.¹¹ We did expand the scope of the review at this initial stage to consider dentists as well (and those working under their supervision), because the existing State legislation dealing with consent to treatment includes dentists and dental treatment within its framework.¹² We proceeded on this narrow footing, but we expressed concern that a review conducted according to such limited terms may eventually prove inadequate.¹³

3.14 That concern was reiterated again and again by those responding to the Commission’s preliminary suggestions.¹⁴ It was pointed out that a statutory framework which articulated the decision-making process for refusing and consenting to medical and dental treatment would leave largely unregulated the decision-making process in other areas of young people’s health care. There are many people who are potentially involved in providing health care to young people, and who may have a significant impact on young people’s physical, mental and emotional well-being, but who do not work under the supervision of a doctor or a dentist. Nurse and midwife practitioners, for example, can be responsible for many aspects of the diagnostic and treatment process, including in some cases prescribing medication.¹⁵ Members of a number of other health-related occupations commonly work with young people but are not necessarily supervised by a doctor or dentist, such as psychologists, social workers, and dietitians. There are also a variety of alternative health therapists who often work independently of the medical profession, such as acupuncturists, chiropractors, psychotherapists and other counsellors. None of these occupations would come within the narrow definition of medical treatment initially put forward by the Commission. The question for us now is whether they should be included within the legislative framework, along with the medical and dental professions. The majority of people in submissions and consultation considered that they should be.

3.15 The Commission can see no policy reason for excluding from the scope of regulation certain health-related occupations other than the medical and dental professions. The examples which we have given show a variety of people whose work potentially involves providing health care to young people, whether that work requires physical contact, advice, the sharing of information, or the provision of remedies. Although general practitioners have been identified as the most likely professional group to be approached by young people with health concerns, young people are also said to be inclined to seek help from a variety of counsellors, such as school counsellors and telephone counsellors, as well as community health services.¹⁶ The same principles require that such care be consented to, by a person competent to give that consent, as those that require a valid consent to medical and dental treatment.

Finding a definition

3.16 It is one thing to agree that legislation dealing with decision-making processes for young people’s health care should not be limited to their medical and dental care. It is another thing to devise satisfactory definitions of health care and health practitioner that are neither too limiting nor over-inclusive.

3.17 Elsewhere, similar legislation has attempted to define “health care” and “health practitioner” in ways that look beyond services provided by the medical and dental professions.¹⁷ In Ontario, Canada, the Health Care Consent Act 1996 defines “health practitioner” according to membership of one of a specified list of professional colleges including, for example, the College of Physicians and Surgeons, and the College of Nurses.¹⁸ By contrast, other jurisdictions have devised definitions according to more general concepts. In British Columbia, Canada, s 17(1) of the Infants Act 1992 defines “health care” as anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose. The Quebec Civil Code articulates a young person’s right to consent according to a distinction in care that is or is not required by the young person’s “state of health”.¹⁹ The Queensland Law Reform Commission recommended a legislative scheme to regulate decision-making for young people’s health care, where the notion of “health care” was defined as the care or treatment of, or a service or procedure for, a young person to assess, diagnose, maintain or treat the young person’s physical or mental condition, and a “health care provider” was defined as a person who provides health care in the practice of a profession or the ordinary course of business.²⁰ In New Zealand, the Code of Health and Disability Services Consumers’ Rights adopts the term, “health care provider”.²¹ This is defined according to a list of specified people, including those who are or who are deemed to be registered with an authority as practitioners of a particular health profession.²² But the term also includes a very broad category of people who provide, or hold themselves out as providing, “health services to the public” whether or not for a charge.²³

3.18 The problem with these more general definitions is that they are uncertain, which potentially leads to disagreements in their interpretation. For example, reference in the British Columbian definition to care that is carried out for a therapeutic purpose immediately invites debate about the validity of the distinction between therapeutic and non-therapeutic procedures.²⁴ Reference in that same definition to cosmetic or other health-related purpose leaves unclear whether a range of acts, such as body-piercing, would be included within the scope of the legislation. Similarly, it could be argued that a tattooist or body-piercer comes within the definition of “health care provider” put forward by the Queensland Law Reform Commission, as a person who treats a young person’s physical condition. Any concerns about a young person seeking the services of a tattooist or body-piercer are different from concerns about a young person seeking or requiring health care, and we would consider it neither appropriate nor desirable to address these different concerns in legislation which is essentially aimed at articulating the decision-making responsibilities of those involved in young people’s health care. On the other hand, legislation which defines the notion of “health care” according to a specified list of services and service providers, while reducing the potential for disagreement in interpretation, runs the risk of excluding those who should be included within the notion of health care.

Adopting definitions from the Health Care Complaints Act 1993

3.19 The definitions of health practitioner, health service, and health registration Act in Recommendation 3 are taken largely from s 4 of the Health Care Complaints Act 1993 (NSW). The Health Care Complaints Act provides a system for dealing with complaints against health care providers in New South Wales. We have chosen to follow its approach in defining these key terms for three reasons.

3.20 The Health Care Complaints Act seeks to find a balance between the more general and the more specific definition. It lists the types of health services that are to be included in its definition. It is an inclusive list. This means that it does not necessarily exclude another type of service that has not been listed. By specifying the types of services to be included within its scope, the legislation is made more readily understandable and more certain. By also allowing for services not specified to come within its scope, the legislation is not overly restrictive.

3.21 In the event of uncertainty in interpretation, there is an existing body of discussion and knowledge (if not case law)²⁵ that has grown up around the interpretation of these definitions used in the Health Care Complaints Act.

3.22 Adoption into the Commission’s scheme of the definitions used in the Health Care Complaints Act ties in with the complaints system that we will be recommending for non-compliance with our recommended legislation. In Chapter 9, we discuss the ways in which our new scheme will deal with such non-compliance, a large part of which involves referral to the Health Care Complaints Commission.

3.23 There are a couple of important differences that need to be noted between the definition of a health practitioner and a health service in the Health Care Complaints Act and our recommended legislation. The definition of a health practitioner in the Health Care Complaints Act includes unregistered health practitioners. This would include those working in alternative health services such as traditional Chinese medicine, naturopathy, as well as psychotherapy. The definition of a health practitioner in our recommendation is confined to practitioners registered under a health registration Act (as defined) and does not include unregistered practitioners such as those working in these types of alternative health services.

3.24 Having accepted that people other than doctors and dentists (or those working under their supervision) may provide health services to young people, we initially took the view that any legislation that we recommend should cover all people providing a health service, whether or not they be registered with a professional body. On reflection, we think that this group, the unregistered health practitioners, should not be included within the legislative scheme that we are recommending. Our reason for taking this view is this. Our recommendations (and indeed, the current law) impose responsibilities on people who treat young people, to assess their competence in order to determine whether or not they can act on the wishes of a particular young person in respect of a particular treatment. With this responsibility comes a certain power: it is left largely to the practitioner to make that assessment of competence, in compliance with the law. Later in this report,²⁶ we explain that our recommended legislation continues the approach of the current law in leaving this assessment of competence largely with the treating practitioner, because this is the only way of allowing for an assessment of each individual’s capacities and level of maturity. In following this approach, we accept that we are bestowing on the treating practitioner a certain level of power (as well as a burden) with respect to the young patient.

3.25 Following on from this, we recommend in Chapter 9 that the legislation provide for a defence to health practitioners who make a reasonable but mistaken assessment about a young person’s competence (or incompetence). This defence is intended to allow practitioners greater certainty, and therefore security, as to their responsibilities in seeing young patients and allow them to act without the constant anxiety of potentially facing legal action. The availability of such a defence does place not only responsibility, but also a certain level of trust, on the treating practitioner (subject to the important safeguard that he or she must be acting reasonably).

3.26 Practitioners who are registered with a professional body are subject to legislation that governs the exercise of their profession. The major function of a registration Act is to provide a vehicle for setting minimum standards for people practising the particular discipline and for maintaining those standards. Members of these professions are required to undertake a standard period of study and training. They remain answerable to their professional disciplinary body for as long as they practise their profession. These provide safeguards for ensuring that these health practitioners do not abuse the power with which they are endowed in assessing the competence of young people. Unregistered health practitioners, on the other hand, are not subject to any standardised training, they are largely unregulated,²⁷ and they are not subject to any disciplinary body. Since people of varying levels of experience and training can hold themselves out as alternative health practitioners, we think that it is too great a risk to give to unregistered health practitioners the responsibility of assessing a young person’s competence to make decisions about his or her health care. In taking this view, we acknowledge that this leaves largely unregulated an area of health care that can affect young people, since our recommended legislation will not govern the conduct of unregistered health practitioners in treating young people. However, this is part of a larger issue relating to the regulation of unregistered health practitioners, which is beyond the ambit of this report.

DEFINING A “SERVICE”

3.27 The terms of the Commission’s reference require a review of the law relating to consent to treatment. In adopting the definitions of the Health Care Complaints Act, the Commission has substituted the word, “service” for “treatment” in Recommendation 3. In keeping with the Health Care Complaints Act, the acts or conduct that are included within the notion of a “service” are not itemised, although the term is described according to a list of the types of services that are included within the meaning of a health service, such as medical, hospital or nursing services.

3.28 Other legislation dealing with the provision of health care, and more particularly young people’s consent to health care, has sought to detail more specifically the types of acts that come within the concept of “care”, “service”, or “treatment” (whichever be the chosen term). For instance, in New South Wales, the Health Care Liability Act 2001, which relates primarily to professional indemnity insurance, defines the term, “health care” as any care, treatment, advice, service, or goods provided in respect of a person’s physical or mental health.²⁸ In South Australia, s 4 of the Consent to Treatment and Palliative Care Act 1995 defines “medical treatment” as treatment or procedures, and expressly includes within that notion the prescription or supply of drugs. In its recommendations for legislation dealing with health care authorisation for young people, the Queensland Law Reform Commission formulated a definition of “health care” which consisted of care or treatment or a service or procedure, but explicitly excluded any non-touching care.²⁹

3.29 We think that it is better not to define the term, “health service” according to specific acts or procedures as legislation in other jurisdictions has sought to do. That approach could be too restrictive. We prefer to leave the concept of a service broadly defined. Reference to the types of services that are to be considered a health service (medical, nursing services, etc) makes it sufficiently clear what is meant by a health service without limiting the types of services that may be brought within the new legislative framework. For example, treatment that does not involve physical contact could come within this broad definition of a health service if it can be characterised as, for example, a medical service.

3.30 One point of departure from the definition of a health service in the Health Care Complaints Act is that our definition expressly links the meaning of a health service to services provided by a health practitioner (meaning a registered health practitioner). As a consequence of excluding unregistered health practitioners from our definition, we have omitted references in our definition of a health service to services carried out by those people listed in subsections (i) and (j) of the definition of a health service in s 4 of the Health Care Complaints Act. However, we make it clear that services that may be classified as alternative health care services will still come within the meaning of a health service for the purpose of our legislation if they are carried out by a health practitioner as defined. For example, a doctor who carries out acupuncture on a young person will still be brought within the scope of our recommended legislation.

3.31 There are several types of care that generate increasing controversy as they relate to young people and which have been brought to our attention in the process of this review as areas in particular need of reform. They are worth mentioning specifically here, because it is not necessarily immediately obvious whether they can be properly characterised as a health service in order to be brought within the scope of our recommended legislation.

Predictive genetic testing

3.32 Predictive genetic testing tests individuals who are at risk of later onset of certain non-treatable genetic diseases. The testing reveals whether an individual carries the genetic mutation that will lead to onset of the disease. The testing, carried out by medical and other health practitioners, would normally be considered a health service under our definition, so as to require compliance with the rules set down for obtaining consent under our proposed scheme.

Palliative care

3.33 Similarly, we take the view that most aspects of palliative care could be characterised as a health service according to the recommended definition. Palliative care has been described as care which is aimed primarily at providing relief from pain and other distressing symptoms, and ensuring quality of life for people suffering from illnesses for which there is little or no prospect of a cure.³⁰ Palliative care will often involve the provision of medication and other measures to manage pain, and we can see no reason why this type of care should not normally be seen as a “health service” so as to bring it within the scope of the recommended legislative framework for consent.

End-of-life decisions

3.34 More problematic is care that essentially involves a failure to provide treatment as a means of ending life. Examples typically include failure to resuscitate a patient who suffers a cardiac arrest or withdrawal of life-sustaining treatment. There appears to be some disagreement in the case law about whether or not failure to act in these circumstances can properly be described as palliative care so as to amount to medical treatment or health care (whichever be the legislative term the subject of discussion). On the one hand, it has been argued that it is part of palliative care because it is aimed at symptom management, which is the central purpose of this type of care.³¹ On the other hand, it has been argued that the ordinary meanings of “medical treatment” and “palliative care” are not broad enough to include the withdrawal of life-sustaining treatment.³² We agree with this second view and find that the ordinary meanings of palliative care and health service are not sufficiently broad to include a failure to provide a service, and that, if we wanted to include failure to act within the definition of a health service in the recommended legislation, there would need to be express provision for this.³³ Ultimately, we have decided not to make a recommendation to this effect. The process for making end-of-life decisions for young people with incurable medical conditions seems to be an area of great uncertainty in the law, as well as one where it would be highly desirable to delineate the legal responsibilities and roles of those involved in the decision-making. However, these possible shortcomings in the law are not limited to end-of-life decisions affecting young people. For adults as well, the law relating to end-of-life decisions is largely unsettled and would benefit from review with a view to possible legislative reform.³⁴ An exercise of this kind is clearly outside the terms of our current reference.

1. See Family Law Act 1975 (Cth) s 61B. See NSW, Parliamentary Debates – Children and Young Persons (Care and Protection) Bill 1998, Legislative Assembly, 11 November 1998, 9762 (Faye Lo’ Po).

2. See Family Law Reform Act 1995 (Cth) s 31 and Cth, Family Law Council, Patterns Of Parenting After Separation (1992) [4.02]-[4.07].

3. See Family Law Act 1975 (Cth) s 60H, which recognises the legal status that a person has in relation to a child born to her, or born to the woman to whom that (male) person is married or with whom he lives, through artificial conception procedures.

4. See Children and Young Persons (Care and Protection) Act 1998 (NSW) s 79(1)(b).

5. See para 1.50-1.51.

6. See Minors (Property and Contracts) Act 1970 (NSW) s 9.

7. See Public Forum on Minors’ Consent to Medical Treatment, Parliament House, Sydney, 20 November 2006.

8. The Children (Care and Protection) Act 1987 (NSW) is repealed upon the whole commencement of s 3(1) of the Children and Young Persons Legislation (Repeal and Amendment) Act 1998 (NSW).

9. See NSW, Legislation Review Unit, Department of Community Services, Review of the Children (Care and Protection) Act 1987: Recommendations for Law Reform (December 1997), 9-10, Rec 1.3. The Review in fact recommended that the term, “young person” be used to refer to a person aged 14 to 17.

10. The exception is the definition of a child for the purposes of Chapter 13 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (children’s employment), which provides that a child in this chapter is a person aged below 15: see s 221.

11. See NSW Law Reform Commission, Minors’ Consent To Medical Treatment, Issues Paper 24 (2004) [1.49] and issue 1.1.

12. See Minors (Property and Contracts) Act 1970 (NSW) s 49.

13. See NSW Law Reform Commission, Minors’ Consent To Medical Treatment, Issues Paper 24 (2004) [1.49].

14. See Doctors Reform Society, Submission, 2; S Siedlecky, Submission, 2; G Tomossy, Submission, 3; Commission for Children and Young People, Submission, [3.1]-[3.4]; Department of Psychological Medicine, Children’s Hospital at Westmead, Consultation. But see Shopfront Youth Legal Centre, Submission, 2, which, on balance, favoured a narrow approach to defining “medical practitioner” and “medical treatment” to exclude advice, information, education, and counselling provided by counsellors, educators, and allied professionals, so as to allow young people of any age access to such services without first having to obtain parental consent. And see too Youth Action and Policy Association NSW, Submission, 2, which seems to limit its discussion to medical practitioner and treatment although does not discuss the possibility of a broader perspective.

15 See Nurses and Midwives Act 1991 (NSW) s 19A (registration of nurse practitioners), s 20 (registration of midwife practitioners), and s 78A (provision for guidelines for the functions of nurse and midwife practitioners, including the possession, use, supply or prescription of drugs of addiction, restricted substances and poison).

16. See NSW Health, Access To Health Care Among NSW Adolescents: Phase 1: Final Report (NSW Centre for the Advancement of Adolescent Health, The Children’s Hospital at Westmead, May 2002), 7.

17. On the other hand, legislation in several jurisdictions has adopted a narrow definition focusing on medical and dental services: see for example Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 4; Medical Consent of Minors Act, SNB 1976, c M-6.1 (New Brunswick) s 1. In New Zealand, s 36 of the Care of Children Act 2004 refers to the right to consent to “medical, surgical or dental treatment or procedure”, although s 37 does refer to a “health practitioner” in respect to immunity for the transfusion of blood to a child. “Health practitioner” is defined according to s 5(1) of the Health Practitioners Competence Assurance Act 2003 (NZ) as a person who is, or deemed to be, registered with an authority as a practitioner of a particular health profession.

18. See Health Care Consent Act, SO 1996, c 2, Sch A (Ontario) s 2. Similarly, although without specifically listing them, s 17(1) of the Infants Act, RSBC 1996, c 223 of British Columbia defines a “health care provider” as a person licensed, certified or registered in British Columbia to provide health care.

19. The distinction applies to a young person aged 14 or over. See Civil Code, RSQ c.C-1991 (Quebec) arts 14, 17.

20. See Health Care Authorisation for Young People Bill 1996 (Qld) (DRAFT) cl 18, 19, in Queensland Law Reform Commission, Consent To Health Care Of Young People, Report 51 (1996) vol 2. Under cl 18(a) and (b), the Queensland Law Reform excluded from the definition of health care blood transfusions and non-touching health care. The Western Australian Law Reform Commission also considered that “medical treatment” should be given a broad meaning in the context of its discussion on young people’s consent to medical treatment, although it did not put forward an actual definition of the term: see Western Australian Law Reform Commission, Medical Treatment For Minors, Project 77, Part 1, Discussion Paper (1988) [1.12].

21. This term is defined in s 3 of the Health and Disability Commissioner Act 1994 (NZ), and its definition applies to the Code as a piece of subordinate legislation: Interpretation Act 1999 (NZ) s 34.

22. See s 3(h) of the Health and Disability Commissioner Act 1994 (NZ). The term “health practitioner” is defined according to s 2 of that Act and s 5(1) of the Health Practitioners Competence Assurance Act 2003 (NZ).

23. See Health and Disability Commissioner Act 1994 (NZ) s 3(k). This subsection has been interpreted broadly to encompass providers who are not associated with health professions that have traditionally been regulated, and has been found to include a Shiatsu massage therapist, a beautician, and a social worker: see discussion in P D G Skegg and R Paterson (general eds), Medical Law in New Zealand (2006) [2.5.3].

24. For a discussion of the distinction, see Brennan J in Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218, 269-274.

25. See Health Care Complaints Commission, Consultation.

26. See Chapter 5.

27. Part 2 Division 6A of the Health Care Complaints Act 1993 (NSW) now makes provision for certain measures to be taken by the Health Care Complaints Commission in response to a complaint against an unregistered practitioner. See NSW Health Care Complaints Commission, Annual Report 2006-2007, 12-13.

28. See Health Care Liability Act 2001 (NSW) s 4.

29. See Health Care Authorisation for Young People Bill 1996 (DRAFT) cl 18, in Queensland Law Reform Commission, Consent To Health Care Of Young People, Volume Two, The Commission’s Legislative Scheme For Consent To Health Care Of Young People, Report 51 (1996).

30. See World Health Organisation, 2005, «http:www.who.int/cancer/palliative/

definition/en»; Palliative Care Australia, Standards for Providing Quality Palliative Care for all Australians (May 2005). See the discussion of the meaning of “palliative care” in Re AG [2007] NSWGT 1 (5 February 2007), [48]-[56]. See too WK v Public Guardian (No 2) [2006] NSWADT 121, [12]-[15].

32. WK v Public Guardian (No 2) [2006] NSWADT 121, [11].

33. As other legislation does, for example, Guardianship and Administration Act 2000 (Qld) Sch 2 s 5(2).

34. Several Australian jurisdictions have introduced legislation to provide for and regulate the making of advance care directives which include procedures for making end-of-life decisions: see Medical Treatment Act 1994 (ACT); Natural Death Act 1988 (NT); Powers of Attorney Act 1998 (Qld); Consent to Medical Treatment and Palliative Care Act 1995 (SA); Medical Treatment Act 1988 (Vic). See too Directions for Medical Treatment Bill 2005 (Tas). NSW Health has issued a guideline on the use of Advance Care Directives and takes the view that advance care directives have legal standing and non-compliance with them may give rise to civil liability, although there is no reference to any legal principle to support this assertion: see NSW Health, Guideline: Advance Care Directives (NSW) – Using (GL2005_056, 22 March 2005). For a general discussion of the uncertain position at common law of the legal status of advance care directives, see L Willmott, B White, M Howard, “Refusing advance refusals: advance directives and life-sustaining medical treatment” (2006) 30 Melbourne University Law Review 7.