Updates and background for this project (Digest)

• An overview
• The common law test: Gillick competency
• Section 49 of the Minors (Property and Contracts) Act
• Part 5 of the Guardianship Act 1987 (NSW)
• Interaction of the common law and legislation
• The impact of the parens patriae jurisdiction
• The impact of child protection legislation
• Understanding and applying the current law

AN OVERVIEW

4.1 In Chapter 1, the Commission noted that the law historically assumed people below the age of majority to be incompetent to consent to or refuse health care because of their immaturity. Developments both at common law and by legislation have meant that now it is possible for young people to consent to or refuse health care if they satisfy certain criteria. This chapter provides an overview of these criteria, with the aim of determining whether or not they are appropriate indicators of legal competence.

4.2 There are three separate sets of rules that make up the current law for deciding whether or not a young person is competent. These derive from:

• the common law (or law developed by judges);
• section 49 of the Minors (Property and Contracts) Act 1970 (NSW); and
• Part 5 of the Guardianship Act 1987 (NSW) (for young people aged 16 and 17).

4.4 As part of this discussion, the Commission considers the ways in which the current law is perceived to be operating, particularly by the health practitioners who must apply it. The point of this is to guage the utility of the current rules, that is, whether practitioners generally understand them and can readily apply them in practice.

4.5 It is also necessary to consider the effects of two additional legal principles on a young person’s ability to make health care decisions. These principles derive from:

• the Supreme Court’s parens patriae jurisdiction as well as the broad protective powers of the Family Court under the Family Law Act 1975 (Cth), and
• the child protection provisions under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

THE COMMON LAW TEST: GILLICK COMPETENCY

4.7 The common law (which applies whenever there is no legislation governing a particular issue) has developed a test for determining a young person’s competence to make health care decisions that is usually articulated as follows. Young people are capable of consenting to their own health care if and when they have sufficient understanding and intelligence to allow them to understand the care that is proposed. This test requires the treating health practitioner to consider the level of the individual young person’s understanding in respect of the particular treatment or advice in question. It does not rely on a fixed age to determine competence: one person may be found competent where another person of the same age may be found incompetent. Nor does a finding of competence in one situation mean that a young person will then be automatically considered competent to make health care decisions generally, because the common law measures the level of understanding in respect of the specific treatment or procedure in question.

4.8 This test for competence was formulated in 1986 in the English case commonly known as Gillick.³ It has since been accepted as forming part of the common law in Australia. Before the decision in Gillick, the common law was uncertain. There had been little opportunity for the courts to consider the question of young people’s legal competence and the scope of their parents’ power to consent to health care. There appeared to be a gradually increasing inclination, at least by the English courts, towards recognising the validity of young people’s choices regarding other aspects of their lives,⁴ but the question of their capacity to make choices about their health care had been largely left unanswered. In the absence of any definitive court decision on the matter, the prevailing view was arguably that people below the age of majority were reliant on their parent, or other legal guardian, to consent to health care on their behalf.⁵ In so far as it expressly recognised a young person’s⁶ capacity to give a personal consent to health care upon meeting certain criteria, the House of Lords transformed the common law.

The facts in Gillick

4.9 The main issue in Gillick was whether a young person could consent to contraceptive treatment, in particular advice and prescription for the oral contraceptive pill. The Department of Health and Social Security had issued a guidance which advised area health services that (among other things) doctors and those involved in the provision of family planning services could prescribe contraceptives to a girl below the age of 16 without the consent or knowledge of her parent if acting in good faith to protect the girl against the harmful effects of sex. Mrs Gillick, mother of five daughters, sought a declaration that the guidance was unlawful on the basis (partly) that a health practitioner could not give advice or treatment about contraception to a person below the age of 16 without his or her parent’s consent because this would be inconsistent with parental rights. The majority of the House of Lords ultimately rejected her claim.⁷ In Lord Scarman’s view, Mrs Gillick’s claim must be refused because young people were these days maturing to such an extent that it was reasonable for the law to allow them some responsibility for their own decisions.⁸ On the other hand, Lord Fraser (also in the majority) rejected the mother’s claim on the basis that the law had always recognised to some degree a young person’s ability to authorise contact with his or her body, because to do otherwise would be impractical and absurd.⁹

Ambiguities in Gillick

4.10 There are several ambiguities in the Gillick case which have never been completely cleared up in subsequent cases and which therefore continue to plague the common law test for competence. The main areas of uncertainty are the following.

The level of understanding required

4.11 It is not clear from the Gillick case what level of understanding is expected of a young person in order to be legally competent. Lord Scarman in Gillick required that a young person understand fully what is proposed, which is a question of fact. In the case of consent to contraceptives, this would require an understanding not just of the nature of the advice, but also an understanding of the moral and family issues involved, such as an appreciation of the emotional impact of pregnancy and its termination.

4.12 On the other hand, Lord Fraser in Gillick set out a list of preconditions that must be satisfied before a girl below the age of 16 could give a personal consent to advice and prescription for the oral contraceptive pill. These required that: (1) the girl understand the advice, (2) the doctor could not persuade her to tell her parents or let the doctor tell them that she is seeking contraceptive advice, (3) she is likely to begin or continue to have sex with or without the advice or treatment, (4) unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer, and (5) her best interests require the doctor to give the advice or treatment without parental consent. It is not clear the extent to which these preconditions could or should be transferred to assess competence to consent to treatment not relating to contraception, or at least treatment not relating to sexual or reproductive health.¹⁰

4.13 In dissent in Gillick,¹¹ Lord Templeman was willing to recognise that a young person could lawfully consent to some forms of treatment, depending on the nature of the treatment and the age and understanding of the young person. However, a decision to engage in sex and practise contraception required not just an understanding of the facts of life but also of the emotional and other consequences to her family, to her male partner and to herself, and Lord Templeman took the view that no girl below the age of 16 could be sufficiently mature to understand all the issues involved to be capable of consenting to treatment for contraception.

4.14 While the judges in the Gillick case may have articulated it in different ways, it is clear that their vision of a common law test for competence demanded a level of understanding higher than that expected of an adult in order to be considered competent to consent. Whereas an adult is required, or rather presumed, to understand the general nature of the treatment proposed,¹² the Gillick test requires young people to have a much more detailed understanding of the treatment and its consequences, including the emotional and moral implications of the decision involved. It is difficult to know the extent to which the Court’s emphasis on a higher level of understanding arose from the controversial and sensitive nature of the facts in the Gillick case, involving questions of teenage sex and pregnancy, and the extent to which these principles were intended to apply to other health care situations.

Residual rights of parents

4.15 Once a young person is determined competent to make a particular health care decision, it is not clear from the decision in Gillick if and to what extent a parent retains any right to be involved in that decision or to make that decision on behalf of his or her child. Lord Scarman seemed to suggest that parents’ right to decide whether or not their child will have medical treatment will terminate once their child is deemed competent to decide for himself or herself. Lord Fraser, on the other hand, considered that parental rights clearly do exist, and do not wholly disappear until a young person reaches the age of majority, but yield to the young person’s right to make his or her own decisions once he or she is capable of making up his or her own mind. This would suggest that parental rights to decide co-exist with a young person’s right to decide, but dwindle as the young person’s right strengthens with his or her growing maturity.

Adopting the Gillick test in Australia – Marion’s case

4.16 In 1992, in a case known as Marion,¹³ the High Court of Australia approved the principles set out in Gillick as reflecting the common law in Australia. The majority of the Court articulated the Gillick test in terms of determining whether the young person has achieved a sufficient understanding and intelligence to allow him or her to understand fully what is proposed, reflecting Lord Scarman’s formulation. The majority also noted that a parent’s power to consent to medical treatment on behalf of his or her child terminates once the child’s capacities and maturity develop to the point where he or she is legally competent.¹⁴

4.17 The facts of the case in Marion were very different from those in Gillick, involving a dispute over whether or not to authorise the sterilisation of a teenage girl with significant intellectual disabilities. It was undisputed that the young girl was not competent to consent to her own treatment (although the majority was clear that a young person with an intellectual disability was not to be automatically considered incompetent to make treatment decisions, but must be assessed in the same way as any other young person). The assessment of a young person’s competence to make treatment decisions was therefore not the focus of the Court’s decision, and the Gillick test was not discussed in great detail, nor its ambiguities dwelt on.

Developments of the common law test since Gillick

4.18 Australian courts have had very little occasion to develop the principles relating to young people’s competence that were first articulated in Gillick and later adopted in Marion. The English courts have had greater opportunity to consider the application of the Gillick test. Until recently, however, most of the English cases have related to decisions about life-threatening illnesses where the young person has refused life-saving treatment and his or her mental capacity has been arguably affected by some form of mental disturbance, or influenced by religious beliefs passed on by his or her parents.¹⁵ The courts have appeared much less willing than in Gillick to find the test for competence satisfied and, for this reason, some commentators have criticised these cases as representing a retreat from the advances made for young people in Gillick.¹⁶

4.19 But, in truth, the courts in these cases have been faced with different issues from those raised in Gillick. Whereas Gillick raised questions about recognising young people’s sexual freedom and privacy, the cases that have followed it have brought into focus the difficulties in applying a test for competence which recognises young people’s maturity but also protects them in the face of life-threatening situations. They have mostly involved consideration of a young person’s right to refuse treatment and have generally resulted in the young person in question being found not competent to refuse, or even if competent, his or her decision subject to being overridden by the courts. Because of this, some have questioned whether the Gillick test in reality would ever apply to recognise a young person’s right to refuse treatment if the young person’s decision goes against the views of a parent or, more particularly, that of the court. Although the courts have noted that the Gillick test should apply equally to cases where a young person is refusing treatment as where a young person is seeking it out, ultimately they have also found that, whether “Gillick competent” or not, a court can override a young person’s decision in order to avoid a risk that might have irreparable consequences or that is disproportionate to the benefits in taking such a risk.¹⁷ The first and paramount consideration will always be what best serves the well-being, welfare and interests of the young person.¹⁸

4.20 Two recent cases stand out as exceptions to the general nature of cases following Gillick to the extent that their facts relate to teenage sexual health and sexual identity, rather than life-threatening illnesses. The first case, Re Alex,¹⁹ was an Australian case, decided by the Family Court and involving an application by a thirteen-year-old girl wishing to begin the process of undergoing a sex change.²⁰ In deciding whether to grant the application, Chief Justice Nicholson considered the application of the principles in Gillick, and noted that the circumstances in which a young person can make a decision about medical treatment are far from precise, with a significant onus on the treating professional’s assessment. Chief Justice Nicholson noted that it was “highly questionable” whether a thirteen year old could ever be regarded as having the capacity to decide for himself or herself on a course of treatment that would change his or her sex, even if he or she had a general understanding of what was proposed and its effect. While highlighting the ambiguities that remain in the common law test, his Honour made it clear that a higher level of understanding was expected of a competent young person than generally required of adults, at least in so far as applies to an understanding of the processes for a sex change.

4.21 The second case, Axon,²¹ was recently decided in the United Kingdom. Its facts more closely resemble the facts in Gillick than any of the previous cases since Gillick. Axon involved consideration of the lawfulness of a guidance to area health services regarding treatment and advice on contraception, termination of pregnancy, and sexual health for people aged below 16. A claim was brought by the mother of five children refuting the lawfulness of the guidance, and seeking a declaration that a medical practitioner must notify the parents of a young person seeking such treatment or advice, unless it would be in the young person’s best interests not to do so. The Court was therefore required to consider the issue of confidentiality as linked with the question of a young person’s right to consent in respect of matters relating to pregnancy and sexual health. Justice Silber confirmed the Gillick test as focusing on the sufficiency of the young person’s understanding but emphasised that, in assessing competence, judges should reflect the extent to which there is now a keener appreciation of the autonomy of young people and a young person’s consequential right to participate in decision-making processes that fundamentally affect him or her. His Lordship stated that in the case of articulate teenagers, we must accept that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare. His Lordship made it clear that he viewed the judgments of the majority in Gillick as having a general application, rather than being confined to the specific nature of the treatment in question in that case. His Lordship noted that any right on the part of a parent to family life dwindles as his or her child gets older and is able to understand the consequences of different choices. In summary, Justice Silber held that there are five requirements to the provision of medical advice and treatment for sexual matters to young people without their parents’ knowledge:

• The young person understands all aspects of the advice, that is, understands all relevant matters, which includes family and moral aspects as well as all possible adverse consequences that might follow on from the advice;
• The doctor cannot persuade the young person to tell a parent;
• At least in the case of treatment for contraception or sexually transmitted disease, the young person is likely to have sex even without the advice or treatment;
• Unless the young person receives the advice or treatment, his or her physical or mental health or both are likely to suffer;
• The best interests of the young person require that he or she receive the advice or treatment on sexual matters without parental consent or notification.

4.22 While the general test for assessing competence at common law seems now well established, there remain several uncertainties about the test which make it potentially difficult to know how to apply it in a variety of different health care situations. In particular, it is not clear just what is meant by the requirement that a young person understand “fully” the treatment proposed, and the extent to which the emphasis in Gillick on an understanding of the moral and emotional implications of a decision should be extended to situations not involving a teenager’s sexual health. The recent English case of Axon may indicate a greater readiness by the courts towards recognising young people’s independence and decision-making rights, although again, given the facts in Axon, it is difficult to know whether the courts will be now more willing to recognise a young person’s decision-making rights in a context outside that of sexual and reproductive health, especially in respect of life-saving treatment.

4.23 It is not necessarily clear whether, and to what degree, the common law permits a young person’s refusal to undergo treatment to be overridden by the court. Moreover, whatever recognition is given at common law to a young person’s refusal of treatment, it should be remembered that, in New South Wales, legislation allows medical practitioners and dentists to provide treatment to a person below the age of 18 without consent if the treatment is necessary, as a matter of urgency, to save the young person’s life or prevent serious damage to his or her health.²² This emergency provision will empower practitioners to override a young person’s refusal in some situations, such as refusal of a life-saving blood transfusion, although it will arguably not allow a practitioner to act in the face of such objection in cases where the need for treatment is less urgent, such as the force-feeding of an anorexic who is not yet at a critical stage, or where the health care in question is not an immediate life or death choice, such as treatment for mental illness (where the threat of suicide or self-harm is not evident) or for substance addiction.²³

4.24 There could also be said to be some uncertainty about the extent to which the common law is willing to recognise the residual rights of parents to consent to or refuse treatment on behalf of a young person who is Gillick competent. It is arguable that the Australian High Court in Marion has shown itself more inclined towards recognising greater control in the Gillick-competent young person than the House of Lords did in Gillick, but the Australian courts have not since had the opportunity to settle the question.

4.25 The ambiguities in the common law are heightened by the uncertain impact of the various legislative provisions in New South Wales. These are referred to below.

SECTION 49 OF THE MINORS (PROPERTY AND CONTRACTS) ACT

4.26 Section 49 of the Minors (Property and Contracts) Act 1970 (NSW) provides:

(1) Where medical treatment or dental treatment of a minor aged less than sixteen years is carried out with the prior consent of a parent or guardian of the person of the minor, the consent has effect in relation to a claim by the minor for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, the minor were aged twenty-one years or upwards and had authorised the giving of the consent.

(2) Where medical treatment or dental treatment of a minor aged fourteen years or upwards is carried out with the prior consent of the minor, his or her consent has effect in relation to a claim by him or her for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, he or she were aged twenty-one years or upwards.

(3) This section does not affect:


(a) such operation as a consent may have otherwise than as provided by this section, or

(b) the circumstances in which medical treatment or dental treatment may be justified in the absence of consent.


(4) In this section:

“dental treatment” means:

(i) treatment by a dentist registered under the Dentists Act 1934 in the course of the practice of dentistry, or

(ii) treatment by any person pursuant to directions given in the course of the practice of dentistry by a dentist so registered, and

“medical treatment” means:

(i) treatment by a medical practitioner in the course of the practice of medicine or surgery, or

(ii) treatment by any person pursuant to directions given in the course of the practice of medicine or surgery by a medical practitioner.

4.27 Section 49 was enacted following a recommendation of this Commission in 1969 in its report, Infancy in Relation to Contracts and Property.²⁴ This report was concerned with the legal capacity of minors to enter into binding contracts and property transactions.²⁵ Included within its recommendations was a draft provision relating to minors’ consent to medical and dental treatment. It was included on the basis that consent to treatment “may or may not be contractual in character” and was therefore at least an incidental matter to the Commission’s terms of reference.²⁶ The recommended provision was considered to offer useful clarification of what was said to be an uncertain area of the law.²⁷ The Commission was clearly looking at the issue of young people’s consent to treatment in the limited terms of contractual capacity and its implications for civil liability, rather than from a broader viewpoint of young people’s health care rights and parental responsibilities. The origins of s 49 contrast strongly with those of the South Australian Consent to Medical Treatment and Palliative Care Act 1995 (the only other piece of Australian legislation dealing directly with young people’s general right to consent to treatment). The South Australian legislation derived from a much broader review focused on establishing a framework for health care decision-making.²⁸

4.28 Section 49 adopts exactly the terms of the Commission’s recommended provision. The Commission did not give any reasons why it had chosen 14 and 16 as the ages between which either the consent of a young person or his or her parent could be relied on to avoid civil liability. It simply referred to the fact that it had made provision for an overlap of ages when either the consent of a parent or a young person could be relied on (that is, 14 and 15) and that it “could see no harm in that”.²⁹

4.29 It is not clear what role the Commission envisaged (if it did at all) for parents of a young person aged 16 or above and no reason was given for choosing 16 as the cut-off age. In the United Kingdom two years previously, a parliamentary committee on the age of majority (known as the “Latey Committee”) had recommended that legislation recognise the validity of a young person’s consent aged 16 or above.³⁰ Presumably, in nominating 16 as one of its cut-off ages in its recommended provision, the NSW Law Reform Commission was following on from the approach of the Latey Committee.³¹ The Latey Committee had chosen 16 as the appropriate age for recognising the validity of a young person’s consent because, first, legislation in the United Kingdom at the time already provided that a person aged 16 or over could choose his or her own doctor and could make his or her own decisions about admission as a voluntary patient to a “mental hospital”; secondly, 16 was the age of consent to sex; and lastly, it was already widespread practice among health care services to accept the consent of a person aged 16 or above as sufficient to receive medical treatment.³²

4.30 There has been very little discussion of s 49 by the courts, and consequently there is very little case law to guide its interpretation. It is clear from the wording of the section that it is intended to apply to a limited set of circumstances where the medical or dental treatment in question has involved some form of physical contact that could potentially constitute an assault or battery. In these circumstances, the section operates to protect the practitioner from civil liability for assault or battery, but does nothing to provide an immunity from other forms of civil liability (such as false imprisonment³³ or negligence) or from criminal liability.

4.31 In the few cases that have considered its operation, the courts have insisted that s 49 does not create a general power of consent, but rather provides an immunity for doctors and dentists from civil liability in the situations referred to. It is not concerned with conferring rights but rather taking them away in so far as a consenting young person may lose any legal recourse against a doctor or dentist for assault or battery.³⁴

4.32 When reading s 49, it should be remembered that the section was enacted more than twenty years before the Gillick test was accepted as forming part of the common law of Australia in the case of Marion. The operation of s 49 needs to be viewed against the backdrop of the developments that have arisen in the common law since the introduction of the provision.

PART 5 OF THE GUARDIANSHIP ACT 1987 (NSW)

4.33 Part 5 of the Guardianship Act 1987 applies to people aged 16 and above who are “incapable of giving consent”³⁵ and sets up a statutory framework³⁶ to govern the decision-making process for their medical and dental treatment.³⁷ The legislation nominates people who are authorised to consent to medical or dental treatment on behalf of those not competent to consent for themselves. In the case of an incompetent 16- or 17-year-old, consent for “major” or “minor” treatment³⁸ may be given by a parent or person with parental responsibility³⁹ or by the Guardianship Tribunal, but consent for special treatment may only be given by the Guardianship Tribunal.⁴⁰

4.34 A person is incapable of giving consent if he or she:

(a) is incapable of understanding the general nature and effect of the proposed treatment, or

(b) is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.⁴¹

4.36 We consulted with the Guardianship Tribunal to find out its views on what we considered were ambiguities in the operation of Part 5.⁴⁴ The Tribunal agreed that, on its face, Part 5 does not necessarily exclude from its application a 16- or 17-year-old who is incapable of understanding a proposed treatment because of immaturity. However, it was not thought that any such case had ever come to the Tribunal’s attention. Realistically, given the cognitive abilities of the average 16- or 17-year-old, any person of that age who was unable to understand a particular type of treatment so as to attract the operation of Part 5 would probably have impaired cognitive abilities by reason of some form of disability. As for the application of the Part to people who are not yet legally adults, while there is no conclusive evidence of the intentions of Parliament, it is possible that the inclusion of this age group in the Part was thought to be consistent with the general approach of the legislation, which is to treat people with disabilities as much as possible as any other person would be treated. It may be that Parliament took the view that 16- and 17-year-olds without disabilities would generally be capable of consenting to treatment and would therefore be treated as adults, not children, and for this reason it would be wrong to exclude 16- and 17-year-olds with disabilities from legislation aimed at ensuring that people with disabilities are treated as much as possible as any other person would be treated. If this was indeed a motivation of Parliament in including this age group within Part 5 of the Guardianship Act, it is one that is based on an incomplete picture of the current law: while in practice it may be that the average 16- or 17-year-old is treated much as an adult in terms of exercising choice over health care, in theory at least, the preceding discussion in this chapter shows that there is still a distinction made in law between an adult and a person of this age in their decision-making abilities.

INTERACTION OF THE COMMON LAW AND LEGISLATION

4.37 In Issues Paper 24, the Commission took the view that s 49 of the Minors (Property and Contracts) Act 1970 now has a very limited operation, and that in most situations the determination of a young person’s competence to consent to or refuse treatment is governed by the Gillick test at common law. We adhere to this conclusion, which was not refuted by submissions or in consultation.⁴⁵

4.38 The interaction of s 49 and the common law needs to be viewed subject to s 49(3)(a), which provides that s 49 does not affect the operation that a consent may otherwise have. This subsection seems aimed at preserving the operation of the common law, to the extent to which the common law recognises a particular consent as legally effective in respect of a young person’s medical or dental treatment. Following this reading of s 49(3), s 49(1) and 49(2) seem intended to operate only to the extent to which they provide additional recognition, beyond any recognition already provided by the common law, of a consent as legally effective. Since the decisions in Gillick and Marion, the common law is now prepared to recognise a young person’s consent to treatment to an extent that surpasses the recognition provided for in s 49, and in this way s 49 is largely redundant.

4.39 In making this claim, we should note that s 49(2) provides for a young person aged 14 or above to consent to his or her own treatment “as if … he or she were aged twenty-one years or upwards” (so as to provide an immunity from civil assault or battery). In our view, s 49(2) does not grant a presumption or conclusive finding of a fourteen-year-old’s capacity to consent, irrespective of whether or not he or she is “Gillick-competent”. It is implicit in s 49 that a consent will only be legally effective if it is a “true” consent, that is, one that is free from factors that would otherwise taint its validity at common law, factors such as fraud, misrepresentation, or mental incapacity. Section 49(2) is simply removing a young person’s age as a barrier to giving an effective legal consent (once the young person has reached fourteen years and for the purposes of avoiding civil liability for assault or battery) but has not prevented the application of any other common law principle that may otherwise affect the validity of a consent. In doing so, the subsection is doing no more than what the common law subsequently did in Gillick and Marion.

4.40 With this in mind, we consider that the interaction of the legislation and the common law has the following effects on determining the competence of young people of various age groups.

Assessing the competence of young people to consent to or refuse health care other than medical or dental treatment

4.41 Section 49 of the Minors (Property and Contracts) Act 1970 and Part 5 of the Guardianship Act 1987 relate only to decisions about medical and/or dental treatment as defined in those Acts.⁴⁶ They do not attempt to regulate the decision-making process for other types of health care. While it is not clear,⁴⁷ it could be argued that the Gillick test at common law would govern the assessment of a young person’s competence to consent to or refuse health care other than the types of care defined in these Acts, at least health care involving physical contact.⁴⁸

Assessing the competence of young people below 14 years of age

4.42 Section 49 does not refer to young people below the age of 14. For young people in this age group, the common law principles as set out in Gillick and approved in Marion apply to determining their competence to make health care decisions.

Assessing the competence of young people aged 14 and over

4.43 Section 49(2) provides that a medical practitioner is protected from civil liability for battery or assault for treating a young person aged 14 and over if the young person consents to the treatment. While it is not clear, the Commission takes the view that this subsection does no more than confirm what is now the position at common law, that is, that a young person aged 14 or over is capable of consenting to treatment, provided he or she satisfies the criteria under the Gillick test. It does not allow medical practitioners to rely on the consent of a young person aged 14 or over if he or she is not competent to give consent according to the Gillick test.

Assessing the competence of young people below 16 years of age

4.44 Section 49(1) allows a parent or guardian to consent to the medical treatment of a young person aged below 16 as if the young person were 21 years of age and had authorised the giving of consent. This subsection adds nothing more to the position at common law for young people below 16 who are not competent to consent according to the Gillick test, and whose parents or legal guardian would normally be responsible for consenting to treatment on their behalf. For young people aged below 16 who are competent according to Gillick, then s 49(1) does seem to qualify the common law by making it clear that their parents can still consent to treatment on their behalf, for the purpose of that consent providing a defence to a civil claim for battery or assault.⁴⁹

Assessing the competence of young people aged 16 and over

4.45 Section 49(2) applies to young people aged 16 and over in the same way that it applies to young people aged 14 and over. In addition, Part 5 of the Guardianship Act 1987 may apply to 16- and 17-year-olds who are considered incompetent according to its criteria for incompetence. The combination of the common law and Part 5 of the Guardianship Act will have the following effects for 16- and 17-year-olds:

§ If the 16- or 17-year-old is found incapable of understanding the general nature and effect of the proposed treatment, and that treatment is considered to be medical or dental treatment as defined in the Guardianship Act,⁵⁰ then the decision-making framework set up under the Guardianship Act applies to obtain consent.

§ If the 16- or 17-year-old is found capable of understanding the general nature and effect of the treatment, and can communicate consent or lack of consent to treatment, then Part 5 of the Guardianship Act does not apply to him or her and instead he or she is subject to the common law rules governing competence to consent. Similarly, if the 16- or 17-year-old is found incompetent as defined in Part 5 of the Guardianship Act, but the treatment in question does not come within the meaning of medical or dental treatment in that Act, or the 16- or 17-year-old is seeking to refuse⁵¹ the treatment rather than consent to it, then the common law applies.

4.46 Although unlikely in practice, in theory at least it is possible that a 16- or 17-year-old who meets the requirements for competence under Part 5 of the Guardianship Act will still be found incompetent under the common law Gillick test. The Gillick test arguably sets a higher standard for competence, requiring an understanding not just of the general nature and effect of the treatment, but that the young person understands fully all aspects and implications of the treatment.

THE IMPACT OF THE PARENS PATRIAE JURISDICTION

4.47 In Chapter 2,⁵² the Commission referred to a legal principle that requires the courts to act in a young person’s best interests. This principle empowers the State’s Supreme Court to intervene in decisions about a young person’s health care if it takes the view that this is necessary to protect the young person’s best interests. The Supreme Court exercises this power as part of what has historically been its “parens patriae” jurisdiction over children. Over several centuries, the common law developed the notion of a power, originally entrusted in the King, to protect those who were not able to take care of themselves.⁵³ The parens patriae jurisdiction is now vested in the Supreme Court, and allows it to make orders for the custody and care of children.⁵⁴ There is no limitation on this jurisdiction: the Court can make any order which it regards necessary to promote the best interests of the child. For example, it can make orders for the sterilisation of a child, or to override parents’ decisions about their children’s medical treatment.⁵⁵ Although it can be displaced by legislation, it seems that the Supreme Court’s parens patriae jurisdiction over young people survives, despite legislation which directly provides for the Family Court and the Children’s Court also to have jurisdiction relating to young people’s welfare.⁵⁶

4.48 It seems that the Supreme Court’s parens patriae jurisdiction may be used not only to override a parent’s decision about his or her child’s health care, but can also be invoked to override a young person’s health care decision after that young person is competent according to the Gillick test. For example, the Court can order that a teenage girl be detained in hospital against her and her parents’ wishes for the treatment of an eating disorder.⁵⁷ It can require a young person to submit to chemotherapy,⁵⁸ or to take anti-psychotic drugs which she is refusing to take.⁵⁹ While it has been emphasised that the Court should exercise its jurisdiction to override a young person’s decision sparingly and with extreme caution, all the same it may do so where it considers this to be necessary for the young person’s best interests, including his or her long term health and survival. Reasonable force may be used to carry out the Court’s orders.⁶⁰

4.49 The exercise of the parens patriae jurisdiction to override a competent young person’s health care decision has not gone uncriticised. Indeed, in Canada, there has been some doubt expressed as to whether the common law there allows the exercise of the parens patriae power to override a “mature minor’s” decision, since the courts cannot have power to protect a person “who is no longer in need of protection”.⁶¹ Like adults (assuming they are not incompetent), it has been argued that mature young people should have their decisions respected, without intervention by the courts.⁶² This argument is based on a particular view of the “mature minor”, which is one that equates the status of the mature minor with that of an adult. From this viewpoint, there is no sound reason for extending the courts’ protective jurisdiction to competent young people.

4.50 But there is another view of the mature minor that does not consider him or her in the same light as a competent adult. Adults are assumed to be generally competent to consent, that is, to consent to all types of health care (although that assumption is rebuttable). Young people, on the other hand, may be found competent in respect of one particular type of treatment, if they pass the Gillick test, but may not be competent in respect of another type of treatment. Their competence, once established, does not operate as a general and automatic entitlement, but must be proved on a case-by-case basis. Competence for them is therefore not a black and white matter, but rather a continuum of maturity which may be found sufficient in some cases but not in others. On this basis, it could be argued that their legal status is something different from that of adults. For reasons of public policy, based on the arguments which we put forward in paragraphs 2.72-2.74, we consider it appropriate for the law to continue to view the competence of young people as something apart from that of adults, and continue to play a protective role towards them. The parens patriae jurisdiction provides a necessary safety net to protect young people from the long-term consequences of decisions which they may regret at an age of greater maturity once they have passed through the developmental stages to which we referred in Chapter 2.

4.51 In addition to the State Supreme Court’s parens patriae jurisdiction, federal legislation empowers the Family Court to intervene in matters relating to young people, including their health care. These powers are very broad, and are similar to the State’s parens patriae powers, to act to ensure the best interests of a child.⁶³

THE IMPACT OF CHILD PROTECTION LEGISLATION

4.52 As with the parens patriae jurisdiction, the operation of the State’s child protection legislation has a potential impact on the ability of young people to make their own health care decisions. Among other things, the Children and Young Persons (Care and Protection) Act 1998 (NSW) makes provision for the State’s intervention in the care of children and young people whom it believes are in need of care and protection. On its face, the Act would seem to authorise the State to intervene to protect a young person from the consequences of a decision he or she has made, even if that young person is considered Gillick competent. For example, the Act allows the Director General of the Department of Community Services to take whatever action is necessary to safeguard or promote a child or young person’s safety, welfare, and well-being if the Director General believes, on reasonable grounds, that the child or young person is in need of care and protection.⁶⁴

UNDERSTANDING AND APPLYING THE CURRENT LAW

4.53 In light of the uncertainties that are apparent in the current law, how are health practitioners applying it to assess young people’s competence in real life situations? While there may be theoretical problems, are practitioners generally confident of having a good understanding of the law, and is it working reasonably well in practice, or is there a real need for change?

Perceptions of the current law in government directives and professional resources

4.54 There are a number of government directives and professional resources that aim either to direct or assist health practitioners in New South Wales in (among other things) determining questions of consent to health care for young people. To an extent, these texts inform practitioners’ perceptions and application of the current law.

4.55 A directive of the New South Wales Department of Health to those working in the public health system sets out the Department’s policies on issues of patient consent to treatment. In the case of non-urgent treatment, the directive stipulates that:

It is NSW Health policy that if the patient is under the age of 14 years, the consent of the parent or guardian is necessary.

A child aged 14 years and above may consent to their own treatment provided they adequately understand and appreciate the nature and consequences of the operation, procedure or treatment. However, where the child is 14 or 15 years of age, it is prudent for practitioners or hospitals to also obtain the consent of the parent or guardian, unless the patient objects.

Generally, the age at which a young person is sufficiently mature to consent independently to medical treatment depends not only on their age but also on the seriousness of the treatment in question relative to their levels of maturity. The health practitioner must decide on a case-by-case basis where the young person has sufficient understanding and intelligence to enable him or her to fully understand what is proposed.⁶⁵

4.57 In a resource for health workers on the ethical and legal responsibilities of working with young people, the NSW Association for Adolescent Health describes the law in New South Wales as allowing young people aged below 18 to give “informed consent” to most types of medical treatment if they have sufficient emotional maturity and intellectual capacity. It notes that s 49 of the Minors (Property and Contracts) Act 1970 (NSW) allows a medical or dental practitioner to treat a young person without being liable for assault if the young person is aged 14 or over and has consented to the treatment, or if the young person is aged below 16 and a parent or guardian has consented on behalf of the young person.⁶⁷

4.58 A resource for general practitioners articulates the law as recognising young people aged 14-16 as capable of giving informed consent to medical or dental treatment, as well as allowing for the possibility that people below the age of 14 may be capable of giving informed consent, although the general practitioner must consider the nature of the treatment and the ability of the young person to understand the treatment. General practitioners must form their own opinion about a patient’s intelligence and understanding, involving consideration of the young patient’s age, level of independence, level of schooling, maturity, and ability to express his or her wishes.⁶⁸

4.59 Although not dealing directly with treatment and the provision of health care, it is interesting to compare these texts with the position taken in the guidelines for research involving young people in the National Statement on Ethical Conduct in Human Research.⁶⁹ These guidelines require that consent to a research project involving a young person’s participation be obtained from the young person, if he or she has capacity to make that decision, and also one parent (or legal guardian) unless the severity of risk involved requires consent from two parents. There is provision for a mature young person to give consent without requiring consent also from a parent, but only in situations of low risk, and where either the young person is estranged from his or her parent, or it is contrary to his or her best interests to involve the parents.

Empirical studies on the provision of health care to young people

4.60 There has been limited empirical research in Australia on the provision of adolescent health care.⁷⁰ Several studies have focused specifically on practitioners’ current understanding and application of the law for determining young people’s competence. These have been carried out in Victoria, where the common law applies without the need to consider the impact of legislation on the assessment of competence, as happens in New South Wales. Although too few to form any definite conclusions, these studies suggested that a large proportion of the sample groups of Victorian GPs felt unsure and inadequately informed about the legal rules for assessing young people’s competence, and that there was a divergence of opinion about factors relevant to determining competence. For example, in the most recent study, GPs were asked to respond to questions about the competence of a hypothetical 14-year-old girl seeking a prescription for the oral contraceptive pill. A greater proportion of respondents found the girl competent, citing good insight and understanding of the consequences, risks, and issues as a primary reason for this assessment (that is, making use of the factors set down in the Gillick test), and also took her age into account. Of those who did not find her competent, some cited her age in combination with other factors, and others cited her age alone, as the reasons for finding her incompetent.⁷¹

The Commission’s consultations with practitioners

4.61 The Commission sought the views of health practitioners involved in various aspects of caring for young people’s health, to get a sense (among other things) of their perceptions of what the current law is, and how well it is working. For the most part, the groups with whom we were able to consult worked as multi-disciplinary teams, usually headed by medical practitioners.⁷² These teams were all devoted to the provision of youth health services, with specialised experience in working with young people. They could therefore be expected to have a more detailed knowledge of the legal requirements for treating young people than the more general population of health practitioners and to this extent their views may perhaps not be completely representative.

4.62 These consultations did provide the Commission with invaluable insight into the realities of applying the current law to resolve issues about competence and consent in a wide variety of real life situations. It was apparent that the “cut-off” ages in s 49 of the Minors (Property and Contracts) Act 1970 were the source of some confusion, with some practitioners taking the view that the provision set down an absolute age of consent (whether that be 14 or 16), although they also had a sound understanding of the Gillick test and the need to apply it to assessing competence. There appeared to be general agreement with the approach taken in the Gillick test, both because it allows consideration of the individual patient’s level of maturity, and because it forces the practitioner to take time in engaging the young person to assess his or her competence. It was thought that the requirement in the Gillick test that the young person understand “fully” was quite meaningless, and it was difficult to know how much a person would need to understand in practical terms in order to meet that criterion. It did, however, encourage practitioners to take time in communicating information to the young person, in an effort to ensure that he or she had a “full understanding”.⁷³ In contrast, it was submitted on behalf of dentists practising in New South Wales that many members of that profession would be unaware of the specific test set down in Gillick, although in practice they would follow its approach, generally without controversy (and keeping in mind that for most dentists, working in private practice and requiring fees for service, consent issues are less likely to arise than in the provision of medical treatment, because dentists are less likely to see young people who are unaccompanied by their parents). ⁷⁴

4.63 There was also some variety in the views expressed by practitioners about the age when most young people should generally be expected to be competent to make health care decisions. Perhaps the differences in views can be partly attributed to the different areas of health care in which these practitioners worked. One practitioner from the Department of Adolescent Medicine in the Children’s Hospital at Westmead took the view that, if the Commission were contemplating a cut-off age for recognising an absolute age of consent, this should be no younger than 16, and that even for 16- and 17-year-olds, it was important to retain the safety net provided by the child protection legislation to protect young people from harmful decisions. By contrast, in the Department of Psychological Medicine in the Children’s Hospital at Westmead (which deals with young people with psychological and psychiatric disturbances), practitioners nominated the ages between 12 and 14 as a “grey area” when it can be difficult to assess competence. They considered that many young people aged 14 and 15 were competent to make their own health care decisions, although they also referred to the child protection legislation which is still available as a last resort. Practitioners from this Department referred to occasional disagreements between parents and young people over treatment decisions, particularly in their area of mental health where parents may sometimes be reluctant to accept that their child is in need of and is seeking treatment. Some practitioners from this Department took the firm view that legislation was needed to give voice to young people in the decision-making process and ensure their participation in that process.

4.64 By contrast, practitioners from palliative care referred to the cautious approach generally taken by the hospitals in deferring to parents’ wishes in decisions about their child’s palliative care, although it was also said that a practitioner would not usually treat an adolescent who was refusing treatment. Difficulties can arise in some situations, such as where parents do not want their children to know that they are dying and request that practitioners not tell their child. Even for older teenagers, the parents’ wishes may be respected, and the young person will not be involved in the decision-making if the parents do not wish them to know of the nature of their illness. This can cause problems for practitioners, especially if the young person asks them directly whether they are going to die, or if the parents make decisions about their child’s care which the practitioner does not necessarily agree with (for example, if they choose an aggressive treatment which the practitioner considers will have little benefit when weighed up against the pain it will cause, or when the parents insist that the young person be resuscitated when the practitioner believes that this is not medically the best decision). Practitioners stressed the special sensitivities of working in this area, and that while they may help, clearer legal rules will not avoid altogether the dilemmas practitioners have to face in helping parents come to terms with the fact that their child is terminally ill.

4.65 The area of predictive genetic testing is another area where there appears to be strong disagreement about whether or not young people should be able to make decisions on their own.⁷⁵ Because of the potentially damaging emotional and psychological effects on a person who tests positive to one of a number of adult-onset diseases, some practitioners take the view that young people should never be allowed to submit to predictive genetic testing.⁷⁶ Others consider that, as with any other medical decision, a young person should be able to consent to testing if he or she is mature enough to understand its implications, although it is also said that many practitioners consider 16 to be the minimum age at which a young person could demonstrate the requisite degree of maturity for such a serious decision.⁷⁷

4.66 All these groups in consultation emphasised that it was best practice, and achieved the best outcomes for the young patient, if both the young person and his or her parents were able to be involved in health care decisions, and could reach agreement on what was the best course of action for the young person.

4.67 In addition to these consultations with more specialised groups, we sought to hear from the population of General Practitioners about some of their experiences in treating young people. We were particularly interested in consulting with GPs since it is this group of health practitioners from whom it seems young people are most likely to seek help about their health concerns.⁷⁸ While we were limited in the extent to which we could consult with the GP population, we were able to gain snapshots of some of their experiences in treating young people.⁷⁹

4.68 In the context of General Practice, the process of assessing the competence of a young patient was described as an interactive one, requiring the GP to engage the young person’s trust in order to encourage them to communicate their real concerns and the real reasons for them seeking help (which they may be reluctant to reveal) and then to determine the level of their understanding about the issues surrounding their concerns. There can be many constraints on this interaction between the GP and the young patient, such as time and a lack of training⁸⁰ and experience on the part of the GP in communicating with adolescents. A number of GPs appear to hold the view that young people below the age of 14 cannot consent to their own treatment, that the age between 14 and 15 is a grey area for assessing competence, and that young people aged 16 and above are able to consent. To a large extent, this view is probably based on the position taken by the Health Department in its directive.⁸¹

4.69 When asked what were the principal factors that they relied on to assess a young patient’s competence, several factors were consistently put forward by the GPs with whom we consulted. These included the age of the young person, his or her level of education, intelligence and ability to retell or summarise in his or her own words the treatment intended. Other matters which appeared to weigh in some GPs’ assessment of competence included whether or not the young person presented alone to the clinic, the young person’s living status (whether he or she was living alone), the young person’s general body language, and the GP’s prior knowledge of the young person through treating his or her family over a long period of time. While a couple of those involved in General Practice thought that the current law for determining young people’s competence was working relatively well, several others expressed a preference for clearer guidance and thought that it was an area that was often misunderstood (both by practitioners and parents).

1. See para 4.37-4.46.

2. See para 4.33-4.36.

3. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.

4. This inclination of the English courts was most apparent in cases dealing with young people who had left (or been taken away from) their father’s custody. By the second half of the nineteenth century, the courts had established a principle by which a young person who had reached the “age of discretion” could refuse to return to his or her father’s custody and the court would not compel his or her return: see R v Howes (1860) 121 ER 467, 468-469; Thomasset v Thomasset (1894) P 295, 298, 306; and see discussion by Lord Scarman in Gillick v West Norfolk AHA [1986] AC 112, 132. By 1984, although again in the context of a father’s power forcibly to retain his child in his custody, the courts seemed willing to accept as a general proposition that a young person with sufficient intellectual and emotional capacity was capable of exercising choices, without regard to a judicially fixed age limit: see R v D [1984] AC 778, 804-805 (Lord Brandon). But at least McHugh J in Marion took the view that “[u]ntil recently, it was doubtful whether at common law a minor could validly consent to the carrying out of a medical procedure”: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218, 273.

5. See Marion’s case (1991) 175 CLR 218, 237 and the discussion of the common law position pre-Marion in J Devereux, “The capacity of a child in Australia to consent to medical treatment – Gillick revisited?” (1991) 11 Oxford Journal of Legal Studies 283, 283-285.

6. In fact, the Court recognised the capacity of young people below the age of 16 to consent, rather than those below the age of 18 (being the age of majority). Legislation in the United Kingdom already recognised that young people aged 16 and above could consent to their own medical treatment in certain circumstances: see s 8 of the Family Law Reform Act 1969 (UK).

7. The House of Lords reversed the decision of the Court of Appeal, which had held that the guidance was unlawful: Gillick v West Norfolk and Wisbech Area Health Authority [1985] 2 WLR 413 (CA).

8. See Gillick [1986] AC 112, 187-188 (Lord Scarman).

9. See Gillick [1986] AC 112, 169 (Lord Fraser).

10. Recently, in the English case of Axon, Silber J noted that Lord Fraser’s “guidelines” were of general application in assessing competence to consent to treatment for sexual matters: see Axon v Secretary of State for Health and Family Planning Association [2006] QB 539, 569-570.

11. Lord Brandon was the other dissenting judge, but he dissented on the ground that to provide contraceptive treatment would be to encourage and promote the commission of a criminal offence (since the criminal law did not recognise as legal the consent to sex of young girls below the age of 16).

12. See para 1.7.

13. Marion’s case (1991) 175 CLR 218.

14. Marion’s case at 237 (Mason CJ, Dawson, Toohey and Gaudron JJ) and at 311, 316 (McHugh J, agreeing on this point). See too Professor Parkinson’s comments on this aspect of Marion in P Parkinson, “Children’s rights and doctors’ immunities” (1992) 6 Australian Journal of Family Law 101, 105. See Chapter 8.

15. See In Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 (teenage girl refused to take anti-psychotic drugs); Re W [1992] 3 WLR 758 (young girl with anorexia); In Re E [1993] 1 FLR 386 (teenage boy refused life-saving blood transfusion because of religious objection). See also Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644 (refusal of treatment for anorexia by 15-year-old girl and by her parents); Re Heather [2003] NSWSC 532 (child and parents refused chemotherapy in preference for alternative therapy).

16. See, for example, 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; A Morris, “Gillick, 20 years on: arrested development or growing pains?” (2005) 21 Professional Negligence 158.

17. See Re W [1992] 3 WLR 758.

18. Re W [1992] 3 WLR 758; In Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11; Re Heather [2003] NSWSC 532.

19. Re Alex (2004) 31 Fam LR 503.

20. In an earlier case, Re A (1993) 16 Fam LR 715; [1993] FLC 92-402, the Family Court had been faced with the question of consenting to the removal and reconstruction of female genitalia to appear like male genitalia. In this case, however, the young girl had been born with congenital adrenal hyperplasia, which meant that she had an unusually high amount of male sex hormones. While in fact a female, the child had many male physical characteristics, and considered herself a boy. In Re Alex, there was no physical basis for the young girl’s identification with the male sex. In Re A, the Court found that A understood the problem and, in general terms, the way in which it was proposed to resolve the problem, and had expressed a desire for that resolution, but it was not satisfied that she had sufficient capacity and maturity to appreciate fully all aspects of the matter to be able to assess objectively the various options available.

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

22. See Children and Young Persons (Care and Protection) Act 1998 (NSW) s 174. See Chapter 7.

23. It is true that, since Re Elm (2006) 69 NSWLR 145, the courts may be willing to interpret “urgency” more broadly than a single, life-threatening instance, although even in Re Elm, where the necessity for treatment continued over four weeks, there was an initial life-threatening condition which then required follow-up care over a period of time. See Chapter 7.

24. NSW Law Reform Commission, Infancy In Relation To Contracts And Property, Report 6 (1969) [44], Appendix F (draft Minority Bill) s 48.

25. See NSW Law Reform Commission, Infancy In Relation To Contracts And Property, Report 6 (1969) [1] for the terms of reference.

26. NSW Law Reform Commission, Infancy In Relation To Contracts And Property, Report 6 (1969) 88.

27. See NSW Law Reform Commission, Infancy In Relation To Contracts And Property, Report 6 (1969) 88 and NSW, Legislative Assembly, Parliamentary Debates (Hansard), 19 August 1970, 5275.

28. The 1995 Act originated from the Consent to Medical and Dental Treatment Act 1985 (SA). The 1985 Act enacted recommendations of a working party on consent to treatment: see South Australia, Working Party on Consent to Treatment, Report of the Working Party on Consent to Treatment (December 1983). See also South Australia, Select Committee of the Legislative Council on the Minors (Consent to Medical and Dental Treatment) Bill 1977-78, Report of the Select Committee of the Legislative Council on the Minors (Consent to Medical and Dental Treatment) Bill 1977-78 (1978).

29. NSW Law Reform Commission, Infancy In Relation To Contracts And Property, Report 6 (1969), 88.

30. Great Britain, Committee on the Age of Majority (“the Latey Committee”), Report Of The Committee On The Age Of Majority (HMSO, London, Cmnd. 3342, 1967), [484].

31. The Law Reform Commission had said from the outset that it based much of its report on the work of the Latey Committee and agreed with its main recommendation of lowering the age of majority to 18: see NSW Law Reform Commission, Infancy In Relation To Contracts And Property, Report 6 (1969), [6].

32. Great Britain, Committee on the Age of Majority, Report Of The Committee On The Age Of Majority (Cmnd. 3342, 1967), [481].

33. See Hart v Herron (1984) Aust Torts Reports ¶80-201 (NSWSC, Fisher J and a jury) for an example of a successful claim of civil liability for false imprisonment involving the provision of medical treatment.

34. See K v Minister for Youth and Community Services [1982] 1 NSWLR 311; In Re Elizabeth (1989) 13 Fam LR 47.

35. See Guardianship Act 1987 (NSW) s 34(1)(b).

36. See P v P (1994) 181 CLR 583, 596 (Mason CJ, Deane, Toohey and Gaudron JJ): “the Part establishes a comprehensive scheme governing the administration of medical or dental treatment to incapable persons who are of or above the age of sixteen years”.

37. Medical or dental treatment is defined in s 33(1) of the Guardianship Act 1987 (NSW).

38. Major treatment is any treatment prescribed by regulation: see Guardianship Act 1987 (NSW) s 33(1); Guardianship Regulation 2005 (NSW) cl 10. Minor treatment is treatment that is not major or special treatment, or treatment in the course of a clinical trial: s 33(1). See Chapter 8 for further discussion of special treatment.

39. Unlike the Children and Young Persons (Care and Protection) Act 1998 (NSW), a “child” is defined in the Guardianship Act 1987 (NSW) as a person below the age of 18: see s 3. Under the Guardianship Act, the person responsible for a child is the person with parental responsibility for the child: see s 33A(2).

40. See Guardianship Act 1987 (NSW) s 36(1). A parent may consent to the continuation of special treatment if so authorised by the Tribunal: s 36(2).

41. See Guardianship Act 1987 (NSW) s 33(2).

42. Guardianship Act 1987 (NSW) Long Title.

43. See Guardianship Act 1987 (NSW) s 32.

44. Guardianship Tribunal, Consultation.

45. NSW Law Reform Commission, Minors’ Consent to Medical Treatment, Issues Paper 24 (2004), [2.18-2.24].

46. See Minors (Property and Contracts) Act 1970 (NSW) s 49(4); Guardianship Act 1987 (NSW) s 33.

47. The cases involving consideration of the Gillick test have all related to the provision of medical treatment.

48. See para 1.13-1.17 and Chapter 9 for the lines of liability for treatment involving and not involving physical contact.

49. See para 4.15, 4.24 above regarding uncertainty at common law about the residual rights of parents.

50. The Guardianship Act 1987 (NSW) s 33(1) defines medical or dental treatment for the purpose of Part 5 as:

(a) medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner, or

(b) dental treatment (including any dental procedure, operation or examination) normally carried out by or under the supervision of a dentist, or

(c) any other act declared by the regulations to be treatment for the purposes of this Part,

(and, in the case of treatment in the course of a clinical trial, is taken to include the giving of placebos to some of the participants in the trial), but does not include:

(d) any non-intrusive examination made for diagnostic purposes (including a visual examination of the mouth, throat, nasal cavity, eyes or ears), or

(e) first-aid medical or dental treatment, or

(f) the administration of a pharmaceutical drug for the purpose, and in accordance with the dosage level, recommended in the manufacturer’s instructions (being a drug for which a prescription is not required and which is normally self-administered), or

(g) any other kind of treatment that is declared by the regulations not to be treatment for the purposes of this Part.

52. See para 2.52-2.64.

53. See Wellesley v Duke of Beaufort (1827) 2 Russ. 1, 20; Fountain v Alexander (1982) 150 CLR 633; R v Gyngall [1893] 2 QB 232, 241; In re McGrath (Infants) [1893] 1 Ch 143, 147-148. See discussion in Marion, 258 (Mason CJ, Dawson, Toohey, and Gaudron JJ), 280 (Brennan J).

54. The jurisdiction was vested in the Supreme Court by the Supreme Court Act 1970 (NSW). See Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644, [87-88]; K v Minister for Youth and Community Services [1982] 1 NSWLR 311.

55. See Marion (1991) 175 CLR 218; Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644, [86-95]; Re Paul [2008] NSWSC 960.

56. See P v P (1994) 181 CLR 583. See NSWLRC, Minors’ consent to medical treatment, Issues paper 24 (2004), [4.28]-[4.33].

57. See Director General, New South Wales Department of Community Services v Y (“DOCS v Y”) [1999] NSWSC 644, [98]-[103]. See also, in the United Kingdom, Re W [1992] 3 WLR 758, cited with approval by Austin J in DOCS v Y at [101]. In DOCS v Y, Justice Austin did not expressly state whether or not he considered the young woman to be competent, but did make it clear that a finding of competence would not limit his power to order her hospitalisation. In Re W, the judge at first instance did find that the young anorexic woman had sufficient understanding to make an informed decision, but that he had the power to order her treatment without her consent. This decision was upheld by the Court of Appeal. See too Re R [1991] 3 WLR 592.

58. Re Heather [2003] NSWSC 532.

59. Re R [1991] 3 WLR 592.

60. See Re C [1997] 2 FLR 180, cited with approval by Austin J in DOCS v Y [1999] NSWSC 644, [102].

61. See CU v. McGonigle (2003) ABCA 66, [33] (Russell J).

62. See L Ferguson, “The end of an age: beyond age restrictions for minors’ medical treatment decisions” Paper prepared for the Law Commission of Canada (October 24, 2004), 20.

63. See NSWLRC, Minors’ consent to medical treatment, Issues paper 24 (2004), [4.24]-[4.25].

64. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 34.

65. NSW Health, Consent To Medical Treatment – Patient Information (Policy Directive, PD2005_406, 2005), 25.2.

66. See para 4.7-4.25.

67. NSW Association for Adolescent Health, Working With Young People: Ethical And Legal Responsibilities For Health Workers – A Resource For Health Workers In NSW (February 2005), 12.

68. M Kang and P Chown, GP Resource Kit: Enhancing The Skills Of General Practitioners In Caring For Young People From Culturally Diverse Backgrounds – A Collaboration Between NSW Transcultural Mental Health Centre And NSW Centre For The Advancement Of Adolescent Health (May 2004), 49.

69. See Australia National Health and Medical Research Council, National Statement on Ethical Conduct in Human Research (2007), [4.2.7].

70. For example, F Veit, L Sanci, D Young, G Bowes, “Adolescent health care: perspectives of Victorian general practitioners” (1995) 163 Medical Journal of Australia 16; T Bartholomew, L Sanci, F Veit, Towards A Practical Set Of Guidelines For Clarifying Informed Consent Criteria And Confidentiality Obligations With Young Patients (Cth Department of Health and Aged Care – General Practice Evaluation Program, 1999-2001); T Bartholomew and S Paxton, “General practitioners’ perspectives regarding competence and confidentiality in an adolescent with suspected anorexia nervosa: legal and ethical considerations” (2003) 10 Journal of Law and Medicine 308; T Bartholomew and T Carvalho, “General practitioners’ competence and confidentiality determinations with a minor who requests the oral contraceptive pill” (2005) 13 Journal of Law and Medicine 191; NSW Centre for the Advancement of Adolescent Health, The Children’s Hospital at Westmead, Access To Health Care Among NSW Adolescents: Phase 1: Final Report (May 2002), Phase 2 (2005). An empirical study is currently being conducted in Victoria concerning clinicians’ assessment of young people’s competence to make medical treatment decisions: see Dr R Duncan, NHMRC Research Fellow, Project: Medical Maturity: An Assessment Of Clinicians Methods For Judging Competence In Young People (ongoing, 2007-2011).

71. The study relied on voluntary responses to a questionnaire mailed out to 1,000 general practitioners in Victoria. Of these 1,000, 305 responded. 41% of these 305 general practitioners reported feeling unsure about the law, 28% were inadequately informed, and 4% were not at all informed: T Bartholomew and T Carvalho, “General practitioners’ competence and confidentiality determinations” (2005) 13 Journal of Law and Medicine 191, 195.

72. See Dr S Towns, Department of Adolescent Medicine, Children’s Hospital at Westmead, Consultation; Dr M Kang, Department of General Practice, University of Sydney, Consultation; Department of Psychological Medicine, Children’s Hospital at Westmead, Consultation; Dr S Trethewie, Sydney Children’s Hospital at Randwick, Consultation, Department of Pain and Palliative Care, Children’s Hospital at Westmead, Consultation; Australian Medical Association, Consultation.

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

74. See Australian Dental Association (NSW Branch), Submission, 1.

75. See Interview with J Blackwell, Policy Project Officer, Genetic Services, NSW Department of Health (Telephone interview, 7 November 2006). See, too, the differing views expressed 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) and 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^.

76. See Human Genetics Society of Australasia, Pre-Symptomatic And Predictive Testing In Children And Young People (Position statement 2008 PS02, February 2008).

77. Interview with J Blackwell, Policy Project Officer, Genetic Services, NSW Department of Health (Telephone interview, 7 November 2006).

78. See M Booth, D Bernard, S Quine, M Kang, T Usherwood, G Alperstein, L Beasley, D Bennett, Access To Health Care Among NSW Adolescents: Phase 1 (Final Report, Centre for the Advancement of Adolescent Health, May 2002), 7.

79. We consulted with Dr Melissa Kang from the Department of General Practice, University of Sydney, and we also conducted a survey of general practitioners who attended a postgraduate seminar, Paediatric Postgraduate Weekend for General Practitioners, Children’s Hospital at Westmead, 5 August 2007. We received 25 written responses to this survey (“Survey of General Practitioners”).

80. See Survey of General Practitioners: most respondents considered that they had received average to a little training, only two stating that they had received a lot of training, and one saying that they had received none at all.

81. See NSW Health, Consent To Medical Treatment – Patient Information (Policy Directive, PD2005_406, 2005), 25.2, discussed above at para 4.55-4.56. Sixteen of the twenty-five respondents to the survey said that they applied the Directive of NSW Health when treating young people: Survey of General Practitioners. See, too, the submission from the Australian Dental Association, which cited the directive of NSW Health as imposing cut-off ages for consent for those practising in the public sector: see Australian Dental Association (NSW Branch), Submission, 2.