Updates and background for this project (Digest)

• The need for reform
• Building on the common law
• Formulating a legislative test
• The Commission’s formulation
• Consequential legislative amendments

THE NEED FOR REFORM

5.1 This chapter sets out the Commission’s recommendations for reform. The central recommendation is for the enactment of a legislative formulation for assessing a young person’s competence to consent to or refuse health care. This test for competence builds on the general approach of the common law under Gillick. It takes account of initiatives in other jurisdictions to devise legislative formulations for assessing competency. A number of consequential recommendations flow on from this central recommendation. They relate to changes to existing legislation in New South Wales, namely:

• repeal of s 49 of the Minors (Property and Contracts) Act 1970 (NSW), and
• amendment to Part 5 of the Guardianship Act 1987 (NSW).

The Gillick test

5.2 In so far as the Gillick test at common law assesses competence according to an individualised notion of maturity, we favour it as the appropriate approach in determining legal capacity. It is the approach most consistent with the psychological and empirical evidence that demonstrates that the development of the brain and social maturity are ongoing processes which vary not only from person to person but also with respect to different types of decisions.¹ The approach of the common law seems generally to have the support of practitioners who must apply it.² It was also generally supported by submissions,³ although there was a divergence in views about whether or not it should be combined with a legislatively fixed cut-off age for consent to be recognised at a particular age or with respect to particular types of treatment.⁴ The Gillick test is also generally favoured in other common law jurisdictions.⁵

To legislate or leave to the common law?

5.3 While it seems fairly clear and uncontroversial that the common law approach is essentially the preferred approach in assessing a young person’s competence, the next step to reform is less obvious. Should the common law be left alone, without any attempt at encapsulating it in legislative form, so that it can be allowed to develop with the support of an existing (if somewhat small) body of case law? Repeal of s 49 of the Minors (Property and Contracts) Act would leave the common law free to develop on its own, unencumbered by the confusion that now arises from the interaction between the two.⁶ Or is it preferable to recommend a legislative formulation that is based on the Gillick test but perhaps modifies and builds on it?

5.4 Ultimately, we take the view that an attempt at a legislative formulation based on the Gillick test should be made. We recognise the concerns about trying to encapsulate in legislation the common law approach, namely a loss of flexibility and uncertainties in legislative interpretation, but nevertheless we consider that this is the preferable option. We have four reasons for reaching this conclusion.

• First, the ambiguities in the common law are important enough to warrant closer attention and to be clarified in legislation.
• Secondly, these ambiguities do not generally reflect simple technical uncertainties in the operation of the law, but relate to more substantive questions about the decision-making processes for young people’s health care. Attempts at clarification should not be left to the necessarily ad hoc developments of the common law but should be based on considered policies that have properly weighed up matters relating to, for example, the appropriate level of understanding to be expected of a competent young person and the proper role of parents in making decisions concerning mature young people. While the common law has the advantage of flexibility, the controversial nature of much of this area of the law is such that it will benefit from a properly thought-out approach to setting down criteria for competence.
• Thirdly, the confused state of the current law in New South Wales is perhaps unique, due largely to the uncertainties arising from the interaction between the common law and statute law, in particular s 49 of the Minors (Property and Contracts) Act. In our view, repealing s 49 will not be enough. Legislation is needed to provide some certainty about what exactly the law is. There is an advantage for health practitioners in having a clear statement of the law that they can find in an easily accessible place.
• Fourthly, while there is always the risk of uncertainty in legislative interpretation, we are not recommending an entirely new and unfamiliar test. Much of the existing case law surrounding the Gillick test will be transferable to the interpretation of the new legislation. In this case, the advantage of clarification and greater certainty through legislation outweighs the risks of ambiguity in interpretation.

FORMULATING A LEGISLATIVE TEST

Previous Australian initiatives

5.6 The suggestion for legislative reform of the law on young people’s competence is not new. For decades, both within Australia and internationally, legislators, law reformers and academic commentators have struggled to find the perfect legislative expression of their views about the appropriate role of young people in decisions about their own health care. Various tests for assessing a young person’s competence have been proposed, and some implemented in legislation. We have considered whether these can provide guidance in formulating a statutory provision for assessing competence for young people in New South Wales.

5.7 Apart from New South Wales’ limited statutory provisions, South Australia is the only Australian jurisdiction with legislation that governs the general assessment of young people’s competence to consent to medical treatment.⁸ The Consent to Medical Treatment and Palliative Care Act 1995 (SA) provides a statutory framework for dealing with the rights of adults and young people in South Australia to make decisions about their medical treatment or palliative care, and includes provisions regulating the assessment of young people’s competence to consent to treatment.⁹

5.8 While few Australian Parliaments have enacted legislation to regulate young people’s consent to medical treatment (or health care), there has been a steady push throughout Australia for greater legislative regulation of this area within the last 30 years. In 1980, the Standing Committee of Commonwealth and State Attorneys-General referred to the Western Australian Law Reform Commission an inquiry into the law relating to the provision of medical treatment to minors, with a view to recommending uniform legislation for enactment throughout Australia.¹⁰ That reference was withdrawn in 1984 because of insufficient resources. The Western Australian Law Reform Commission proceeded on a more limited inquiry into the law in Western Australia, and proposed a statutory scheme for determining young people’s right to consent to medical treatment in that State. In the meantime, a review of South Australian law surrounding young people’s consent to medical and dental treatment had begun in 1978,¹¹ been revived in a different form in 1983,¹² and in 1985 culminated in legislation.¹³ More recently, the Queensland Law Reform Commission conducted a review of the law on young people’s competence to consent to health care, which resulted in recommendations for a wide-ranging statutory regime to clarify and build upon the existing law.¹⁴

5.9 There are several common threads that run through the findings of these reviews, and several notable points of divergence.

Fixing a cut-off age for consent at 16

5.10 In South Australia and Western Australia, it was recommended that legislation fix at 16 the age of consent to medical treatment, that is, young people aged 16 and over could make decisions about their medical treatment to the same extent as if of full age. A young person of this age would then only be considered incompetent for the same reasons that an adult might, for example, by reason of some incapacity of mind, rather than immaturity because of age. That recommendation is now law in South Australia under s 6 of the Consent to Medical Treatment and Palliative Care Act 1995.¹⁵ The reasons for fixing 16 as the cut-off age for consent were, first, that 16 is already recognised as the age when a person assumes a certain measure of responsibility in some areas, such as consenting to sex or driving a car, and it is reasonable to assume that this is an acceptable age for the law to recognise maturity in decision-making;¹⁶ secondly, a young person would generally be able to assess information and make a decision on that information (although there was no scientific or empirical evidence provided to support this assertion);¹⁷ thirdly, 16 has been fixed in legislation in several jurisdictions overseas as the age of consent to medical treatment and there is little controversy about the ability of young people of this age to make their own medical decisions.¹⁸

5.11 On the other hand, the Queensland Law Reform Commission did not recommend a cut-off age for consent at 16.¹⁹ It applied the same test for competency to 16- and 17-year-olds that it did to younger ages (a test more stringent than that applied to adults). It did, however, make a distinction in the consequences of finding a 16- or 17-year-old competent: once found competent, this age group would legally be able to consent to and refuse medical treatment in the same way as adults, regardless of whether or not that decision served their best interests, and irrespective of their parents’ view. The reasons put forward by the Queensland Law Reform Commission appear to be based mainly on a desire for simplicity. It expressed concern that it would be too complicated and unworkable to apply two different rules for competency to those below 16 and those aged 16 and 17.²⁰ It is arguable, however, that the Queensland Law Reform Commission’s recommended provisions are unnecessarily complicated in distinguishing between the consequences of a finding of competency.

Formulating the test for competence

5.12 Whether it was applied to those aged below 16, or to all young people below the age of 18, the general test for assessing competence put forward in Western Australia, South Australia and Queensland consistently contained elements of the common law test in Gillick. The proposed tests focused on the individual’s level of maturity, requiring consideration of whether the young person was capable of understanding the nature and consequences of the proposed treatment,²¹ or, phrased differently, if he or she were of sufficient intelligence and understanding to comprehend the nature and implications, including the consequences, of the proposed treatment.²² The Queensland Law Reform Commission framed its test for competence according to whether a young person understands the nature and consequences of the health care, and communicated his or her decision in some way.²³ It emphasised its modification of the common law test from capability to understand to actual understanding, although it is questionable whether a health practitioner would be able to discern and apply any practical distinction in the tests.²⁴

5.13 While the basic formulation of the test for competency in the three States was essentially the same (with some variation in Queensland), there was a fair amount of divergence in the details of each formulation, in particular in relation to safeguards which it was considered should be included to protect both the interests of the doctor, or other health care provider, and young people. There were also important differences of opinions about the role parents should play in treatment decisions for competent young people.

5.14 The Western Australian Law Reform Commission recommended that legislation presume that young people aged 13 to 15 were competent to consent, with that presumption being rebuttable upon sufficient evidence. Young people below the age of 13 were potentially mature but their competence must be established to the satisfaction of the doctor. It was considered that the presumption for the older age group would provide doctors with clearer guidance.²⁵ The Western Australian Law Reform Commission took the view that once a young person was deemed competent to consent to or refuse treatment, whether it be because the young person was aged 16 or over, or because a younger person was determined to be competent, a parent could not override that decision, except where the young person’s consent could not be given for reasons other than because of his or her age, such as unsoundness of mind or unconsciousness.²⁶ As well, the Western Australian Law Reform Commission recommended the formulation of guidelines by which doctors and hospitals should regulate their conduct for obtaining consent and communicating certain information to a “mature minor”, or, in other cases, to the young person’s guardian:

(a) a sufficiently accurate and detailed description of the treatment to identify that to which the child has consented;

(b) a description of the inherent risks (and their severity) which could result from the treatment together with an assessment of the likelihood of those risks being realised;

(c) an indication of alternative treatment;

(d) an indication of the likely course of the patient’s condition or disease in the event (1) of the proposed treatment, (2) the alternative treatments, or (3) no treatment, being carried out;

(e) a description of any benefits about the proposed procedure; and

(f) that the child is free to withhold or withdraw consent at any time.²⁷

5.16 The Queensland Law Reform Commission agreed with the approach taken in the South Australian legislation that a competent young person below the age of 16 should only be able to give a legally valid consent to medical treatment if that treatment is also in his or her best interests.³³ Its greatest point of divergence from the conclusions of the other Australian reviews was to fix a lower age limit, 12, below which no young person would be legally capable of consenting to, or refusing medical treatment. This recommendation reflected the position taken by the Queensland Law Reform Commission that parents should generally be involved in all significant decisions affecting the health of their children below the age of 12.³⁴ However, as exceptions to this general rule, it recommended that competent (as defined according to its Gillick-style test) young people below 12 be able to consent to certain types of treatment, such as contraceptive and sexual health care.

Providing a defence for practitioners

5.17 Both the Western Australian and the Queensland Law Reform Commissions recommended the provision of a statutory defence for practitioners to a claim for civil or criminal liability where the action was based on a lack of a young person’s capacity to consent (but not where it was based, for example, on the doctor’s negligence). Under the Western Australian recommended provision, this defence would be available if the practitioner reasonably believed that the young person was mature, or if the treatment was necessary to deal with a serious threat to the life or health of the young person. The Western Australian Law Reform Commission took the view that this defence would encourage practitioners to act upon the directions of young people whom they might previously be reluctant to treat without parental consent, even if they considered them to be competent. It also considered that the provision of this defence removed the need for any special rules for particularly sensitive types of treatment, such as treatment relating to sexual health, termination of pregnancy, contraception, and other adolescent health issues, where questions of determining a young person’s competence to consent must be balanced with the public interest in encouraging them to seek help and treatment. The defence would allow doctors to treat a young patient even if he or she was not considered competent to consent, if this was the only way that he or she would seek treatment.³⁵

5.18 The Queensland Law Reform Commission recommended a defence, or defences, from liability for health care providers who acted under the mistaken but honest and reasonable belief as to the young person’s competence. This defence would protect the health care provider from criminal and civil liability for assault or battery under the general law, as well as from civil liability under the new cause of action which it recommended in its legislative scheme for unauthorised health care.³⁶

5.19 These defences are discussed more fully in Chapters 9.

Overseas jurisdictions

5.20 Many common law countries overseas have sought to achieve the ideal statutory framework for determining the roles of young people, parents, and the State in making decisions about a young person’s health care. A snapshot of some of the more interesting innovations is given below.

Canada

5.21 In Canada, several provinces have legislation dealing with a young person’s competence to make health care decisions.

5.22 In British Columbia, s 17(2) of the Infants Act 1996 provides:

Subject to subsection (3), an infant may consent to health care whether or not that health care would, in the absence of consent, constitute a trespass to the infant’s person, and if an infant provides that consent, the consent is effective and it is not necessary to obtain a consent to the health care from the infant’s parent or guardian.

A request for or consent, agreement or acquiescent to health care by an infant does not constitute consent to the health care for the purposes of subsection (2) unless the health care provider providing the health care

(a) has explained to the infant and has been satisfied that the infant understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care, and

(b) has made reasonable efforts to determine and has concluded that the health care is in the infant’s best interests.

5.25 At the time of its introduction, one commentator described the test under the Infants Act as changing the common law in a number of significant ways.⁴² These included the following:

• It was argued that, although the common law accepted the possibility of a young person below the age of 16 being competent, it was more likely to view a person of this age as not capable of consenting and would apply special ethical considerations that went beyond mere cognitive ability to that assessment. These considerations related to the guidelines set out by Lord Fraser in the Gillick case.⁴³ It was argued that these same considerations did not form part of the statutory provision under the Infants Act, therefore increasing the possibility for a young person to be competent to consent under the statutory test.
• It was argued that the common law gave greater control and input by parents into the decision-making process for their children than the test set up by the statutory provision.⁴⁴
• It was noted that the legislative provision extended the requirement for consent beyond consent to health care involving physical contact (although there is no discussion of the legal repercussions for treatment not involving such contact for which there is no valid consent).

… the person is able to understand the information that is relevant to making a decision about the treatment …and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

5.28 Similarly, the Consent to Treatment and Health Care Directives Act 1988 of Prince Edward Island provides for a general presumption of capacity to consent to or refuse treatment,⁴⁸ where capacity is assessed by the health practitioner according to the patient’s ability to understand the information that is relevant to making a decision concerning the treatment; understand the information that applies to his or her particular situation, understand his or her right to make a decision; and appreciate the reasonably foreseeable consequences of a decision or lack of a decision.⁴⁹

5.29 New Brunswick has legislation similar to that of British Columbia in so far as it requires the health practitioner to assess the young person’s understanding and whether the health care serves his or her best interests. The Medical Consent of Minors Act 1976 grants young people aged 16 and above the right to consent to medical treatment “as if they had attained the age of majority”.⁵⁰ The consent of a young person below that age may be as effective as if that person had attained the age of majority if a specified health practitioner considers that the young person is capable of understanding the nature and consequences of the medical treatment, and the medical treatment is in the best interests of the young person and his or her continuing health and well-being.⁵¹

5.30 In Quebec, the Civil Code makes a distinction between treatment that is “required by the state of health” of the minor⁵² and treatment that is not required by the state of health of the minor.⁵³ For treatment that is required by the minor’s state of health, consent of a parent or guardian is required for a person below the age of 14, and young people aged 14 and above may give their own consent or refusal but their refusal may be overridden by court authorisation. For treatment that is not required by the minor’s state of health, people below the age of 14 cannot give their own consent, and people aged 14 and above may consent themselves unless the care entails a serious risk to the young person’s health and may cause grave and permanent effects.

United Kingdom

5.31 In the United Kingdom, s 8 of the Family Law Reform Act 1969 (UK) provides, among other things, that a person who has attained the age of 16 is able to give as effective a consent as if he or she were of full age to any surgical, medical or dental treatment which, in the absence of such consent, would constitute a trespass. That provision originally arose from recommendations of a Parliamentary report in 1967, which noted that all the professional bodies with which it consulted had considered that patients aged between 16 and 18 should be able to give an effective consent to treatment.⁵⁴ It has been held that s 8 does not confer on young people aged 16 and 17 an absolute right to make decisions about their medical care, but simply enables them to give consent for the purpose of protecting a medical practitioner from any liability for trespass. The courts may nevertheless override the decision of a 16 or 17-year-old if his or her best interests require such intervention.⁵⁵

5.32 In 1995, the Law Commission of England and Wales published a report on mental incapacity in adults, in which it considered various formulations of the test for determining competence to consent to medical treatment where there is a question of mental incapacity. It recommended that the test be formulated in terms of deeming an adult patient not competent if his or her disability is such that he or she is unable to make a decision based on the information relevant to the decision in question. While this test was confined to adults, there is no reason why it could not be as equally applicable a test for patients below the age of 18.

New Zealand

5.33 In New Zealand, the Care of Children Act 2004 (NZ), in particular s 36, provides a framework for the making of medical decisions concerning young people. This section replaced s 25 of the Guardianship Act 1968 (NZ), with only slight modification. Section 36(1)(b) expressly provides that the consent or refusal of a young person aged 16 and over to medical, surgical or dental treatment or procedure, including a blood transfusion, has effect as if that young person were of full age, where the treatment or procedure is to be carried out on the young person for the young person’s benefit.⁵⁶ The subsection does not address the question of whether parents, guardians, or courts, retain a co-existing right to make decisions for those aged 16 and over. It also does not deal expressly with the rights of those aged below 16 to consent to and refuse medical treatment, and on its face it would seem that in New Zealand a young person below the age of 16 must generally rely on his or her parents to make medical decisions on his or her behalf.⁵⁷ It has been argued⁵⁸ that, by expressly preserving⁵⁹ (among other things) a rule of law by which no consent or no express consent is necessary, the common law relating to the ability of a mature minor to consent to medical treatment is adopted into New Zealand law. It should also be noted that, under s 36(2), young people who are married, in a civil union, or living with another person as a de facto partner, can consent to and refuse medical treatment for themselves, or for any other person (presumably their child) as fully as if they were of full age. Section 38 of the Act allows a young woman of any age to consent to or refuse an abortion. New Zealand has also adopted a Code of Health and Disability Services Consumers Rights,⁶⁰ which places various obligations on health and disability support service providers and provides for consumer rights, including the right to make an informed choice and give informed consent if competent, with a presumption in favour of competence.⁶¹

THE COMMISSION’S FORMULATION

RECOMMENDATION 4

The legislation should provide that:
• a competent young person may accept or refuse health care and it is not necessary to obtain an acceptance or refusal of the health care from the young person’s parent or other legal guardian;
• a young person is competent to accept or refuse health care if, in the opinion of the health practitioner offering the health care, the young person understands the information that is relevant to making a decision about the health care, and appreciates the reasonably foreseeable consequences of that decision.

The legislation should provide that a health practitioner must not rely on the acceptance or refusal of health care of a parent or guardian on a young person’s behalf if that acceptance or refusal conflicts with the young person’s decision where the young person is competent to make a decision about his or her health care according to Recommendation 4.

The legislation should provide that:
• a young person who is aged 16 or over is presumed to be competent to make a decision about his or her health care according to Recommendation 4,
• that presumption can be rebutted if, in the opinion of the health practitioner, the young person does not understand the information that is relevant to making a decision about the health care and does not appreciate the reasonably foreseeable consequences of the decision.

Nothing in Recommendations 4-6 prevents a parent from giving consent to health care on behalf of or in relation to a young person who is not competent to give consent or to decide to accept or refuse health care for reasons other than immaturity, such as unconsciousness or cognitive impairment.

5.34 There are a number of preliminary matters worth noting about the basic test for competence that we are putting forward. First, it continues to put the onus on the treating practitioner to assess the young person’s competence. This is the only practical way of applying a test that relies on consideration of each individual’s qualities. The practitioners with whom we consulted largely appeared to accept their role in the assessment process as appropriate, although we note the practical constraints that can be placed on them in carrying out that role, specifically time constraints and financial concerns, as well as sometimes a lack of specific training in treating and communicating with young people. On the other hand, as was put to us in consultation,⁶² a test which requires assessment of an individual’s understanding at least forces a practitioner to some extent to spend some time engaging with young patients in order to extract from them their level of maturity. By encapsulating the test for competence in a statutory provision, practitioners are less likely to be confused by apparent cut-off ages of 14 and 16 (as seems to happen in some cases now)⁶³ and it will be clearer to them that they are required to spend some time assessing the patient. Also, we are recommending a more certain and accessible complaints mechanism for responding to situations where the assessment exercise may not have been properly carried out.⁶⁴

5.35 A second preliminary point about our recommended test is that it makes no distinction between consent and refusal, that is, the same test is applied to determine legal competence to consent to care as to refuse care. We see no reason in principle why competence should be measured differently depending on whether a young person seeks to consent or refuse.

5.36 Thirdly, as with the Gillick test, our formulation involves an assessment of competence in relation to each particular type of treatment that is proposed. It will therefore still be possible for the same young person to be competent to make a decision about one type of health care, but not another. This approach has been criticised partly on the basis that it imposes a risk-related standard of competence, that is, the greater the likelihood of harm from a particular treatment, the greater the level of competency that should be expected. ⁶⁵ However, we have no concerns about this. We concede that our test requires a greater understanding than is expected of adults, and that it involves consideration of the consequences of a decision (which would include an appreciation of the risks). It is reasonable to expect that some forms of treatment, particularly those addressing more serious health concerns, may require an understanding of more complex considerations, and so a young person may not be competent to decide about it even though they are competent to decide other matters. We note that this approach was favoured by practitioners in consultation.⁶⁶

5.37 A last preliminary matter relates to consideration of the young person’s best interests. Unlike some provisions in other jurisdictions, our formulation does not include a requirement for the practitioner to be satisfied that the decision is in the young person’s best interests as part of the exercise of determining competence. We do not consider that it is the practitioner’s role to decide what is in the patient’s best interests (beyond any ethical duty to do no harm), and it may have the perhaps unintended effect, as it seems to have had in British Columbia, of providing scope for the practitioner to ignore applicable consideration of confidentiality and consult with parents and guardians in order to determine the young person’s best interests. Once the young person is determined to be competent, according to the required level of understanding and appreciation, that should be the end of the practitioner’s involvement in questioning the young person’s decision. This is different from the overarching power of the State’s Supreme Court to intervene in the young person’s decision in the exercise of its parens patriae jurisdiction which derives from the common law. This jurisdiction will not be ousted by the new legislation, and will act as a safety net for people below the age of 18. There will of course also be the power of the federal courts to exercise their welfare jurisdiction over children arising from the Family Law Act (Cth).

Points of divergence from the common law

5.38 Moving on to the substance of the formulation, there are a number of points of divergence in the wording of the Commission’s test from the traditional formulation of the Gillick test at common law.

The level of understanding expected

5.39 First, the Commission’s formulation does away with the requirement to understand “fully”. Instead, our test adopts the wording of the provision in Ontario, under the Health Care Consent Act 1996, which requires an understanding of the information relevant to the care and an appreciation of the reasonably foreseeable consequences of the decision.⁶⁷ This wording is more precise than the requirement for a “full” understanding under the Gillick test, and it can be hoped that greater precision will bring greater certainty and meaning to its application. The focus of this new formulation is on the information that is relevant to the health care in question. Like the provision in the Infants Act of British Columbia, which in this respect is similar to the provision of Ontario, the range of matters of which the young person is expected to have an understanding is more limited than the potentially endless range of ethical, emotional, and moral matters which he or she may be expected to understand at common law. The recommended formulation concentrates on the intellectual ability to process and comprehend the information that relate to the care.

5.40 At the same time, as the Canadian courts have made clear, the requirement not just to understand but also to appreciate imposes a more stringent standard of competence than one based solely on intellectual comprehension. It involves an ability to weigh up and evaluate information and consider the various consequences of the decision. That appreciation may be diminished by, for example, a delusional belief arising from a mental illness,⁶⁸ or an inability to consider long-term consequences of a decision because of immaturity.

5.41 By requiring a greater level of understanding for young people than the basic test of intellectual comprehension that is generally expected of adults, it is clear that, like the common law, our formulation applies a more stringent standard of competence on young people than on adults. We believe that this is appropriate for the reasons which we discussed in Chapter 2. We have, however, tried to make the formulation more precise than the vague requirement for a “full” understanding at common law, and keep it grounded with a focus on the processing of information that relates to the health care in question.

Actual understanding, not ability to understand

5.42 While the common law test is generally framed in terms of the young person’s understanding, there has been some dispute in other jurisdictions as to whether it is preferable to require proof of actual understanding or ability to understand. A requirement that a young person is able to understand means that he or she will not be incompetent simply because the practitioner failed to provide the relevant information. On the other hand, a test that requires actual understanding reinforces to the practitioner the need to make sure he or she is communicating clearly to be certain that the young person does in fact understand. While any practical difference in the wording is likely to be minimal, we consider it preferable that the test require actual understanding.

Presumption of competence at 16

5.43 Unlike the common law, the recommended legislation presumes that young people aged 16 and over are competent to consent to or refuse health care. That presumption is rebuttable where, in the practitioner’s view, the young person in question does not satisfy the test for competence under Recommendation 4. The choice of 16 as an age for a presumption of competence follows the general trend elsewhere of identifying 16 as the age when young people are generally capable of consenting. It accords with much of what appears to be the current practice of those working in the area of adolescent health.⁶⁹ It is also supported by much of the psychological evidence on young people’s development that indicates that at least their cognitive skills are usually fully developed by this age, and it is consistent with other aspects of the law in recognising young people’s decision-making abilities at this age. However, there is also enough psychological evidence to suggest that not all 16-year-olds will be mature enough to exercise a mature choice with respect to all sorts of treatment, and that is why we have recommended a presumption rather than a blanket age of consent.

No overriding power of parents for competent young people

5.44 The new legislation will make it clear that a parent or guardian has no power to override a decision made by a young person once that young person is competent. This clarifies the position at common law, and certainly modifies the position in New South Wales, where the interaction of the common law with s 49 of the Minors (Property and Contracts) Act 1970 apparently means that a parent or guardian may currently be able to override the decision of a competent young person. The effect of the new legislation on parental powers in respect of competent young people will have implications on patient confidentiality, something which will be discussed as part of the Commission’s reference on privacy.⁷⁰

5.45 It should be noted here that while a parent may not have any power to override the decision of his or her child once competent, the courts will retain the power which they have at common law to intervene in decisions affecting young people which are not thought to be in their best interests. Concerned parents can apply for the courts’ intervention even though they themselves will not be able to act unilaterally.

5.46 Lastly, Recommendation 7 should be noted. It is intended to apply to situations where a young person is not competent to consent to health care for reasons other than his or her age, for example, a young person who is in a coma and who requires non-urgent treatment. Recommendation 7 makes it clear that a health practitioner can rely on the consent of the young person’s parent in this situation.

Application of the formulation to some typically controversial cases

5.47 The preceding chapters have highlighted some of the more typically controversial cases involving decisions about young people’s health care. It is helpful to test the practicality of our recommended formulation by applying it to some such cases. In many of these situations, the finding of competence or incompetence would likely be the same whether the common law Gillick test was applied or the Commission’s new test, since our test is based on the common law. It is our view, however, that our test will tend to make the determination of competence more precise and therefore more easily and more consistently carried out.

Contraceptive treatment

5.48 Under the Commission’s test, the health practitioner would not need to concern himself or herself with the young woman’s moral character to the same extent as appears to be expected in, for example, the guidelines put down by Lord Fraser in Gillick. The focus of the recommended test would be on the young woman’s intellectual ability to comprehend the care in question (including her ability to comply with a specific treatment regime, such as taking the Pill daily at a set time). She would need to show an appreciation of the reasonably foreseeable consequences of the decision, which in this case would be to prevent of an unwanted pregnancy. There would be less focus on the young woman’s insight into the moral repercussions of her decision to be sexually active.

Treatment for a terminal illness

5.49 In situations involving a young person who is terminally ill, the potential for controversy seems most likely to arise where the young person and his or her family are faced with the choice between following a more aggressive form of treatment and palliative care. Under our test, in order to make that decision himself or herself, the young person would have to understand the care that is proposed and the consequences of it, such as the chances of success of aggressive treatment, its side-effects, the likely consequences of accepting palliative care and the implications of this on the family. Given that young people in these situations are often said to have a special maturity, borne from their experiences with hospitals and facing life/death situations, there is a distinct possibility that a terminally ill young person, at least a teenager, would be found to appreciate the reasonably foreseeable consequences of his or her decision. A young person aged 16 or over would be presumed competent to make that decision. It seems likely that our test would put a greater duty on practitioners to inform the young person of the options for care, including (where relevant) the likelihood of death. This does not appear to happen consistently now, even for older adolescents, if their families do not want them to be told. While this response is completely understandable, it benefits the mature young person, and ultimately his or her family, to be involved in a decision so important to the quality of his or her life.

CONSEQUENTIAL LEGISLATIVE AMENDMENTS

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

RECOMMENDATION 8

Section 49 of the Minors (Property and Contracts) Act 1970 (NSW) should be repealed.

Part 5 of the Guardianship Act 1987 (NSW)

Recommendation 9

The definition of incapacity in s 33(2) in Part 5 of the Guardianship Act 1987 (NSW) should be amended to exclude from its operation any person who cannot consent solely by reason of his or her immaturity.

The legislative scheme that is recommended in Recommendation 1 should make it clear that it does not apply to people who are incapable of consenting for reasons that bring them within the scope of Part 5 of the Guardianship Act 1987 (NSW) following amendment according to Recommendation 9.

5.52 It is outside the terms of this reference to review the State’s guardianship legislation, even as it applies to a specific group of young people. Apart from our discussion with the Guardianship Tribunal, the Commission has not consulted on the operation of the Guardianship Act, and it would be foolish to make specific recommendations for legislative reform without a full discussion on the ramifications of such reform with those with expertise and experience in this area. At the same time, we take the view that the law has been unnecessarily complicated as a perhaps unintended result of the way in which Part 5 of the Guardianship Act is drafted, and this is something that should be rectified. For this reason, we make two general recommendations in relation to Part 5 in so far as it relates to our legislative reforms. These recommendations make it clear that the protections afforded by the Guardianship Act are intended to apply only to young people (as well as adults) who are incompetent to make a decision by reason of a disability rather than solely by immaturity.

1. See para 2.20-2.36.

2. See para 461-69.

3. Doctors Reform Society, Submission, 2; S Siedlecky, Submission, 3; G Tomossy, Submission, 2; National Children’s and Youth Law Centre, Submission, 7; Shopfront Youth Legal Centre, Submission, 4; Students of the Faculty of Nursing, Midwifery and Health, UTS, Submission, 2; Youth Action and Policy Association NSW, Submission, 1; Youth Justice Coalition, Submission, 3; Commission for Children and Young People, Submission, 7-8; NSW Council for Intellectual Disability, Submission, 1. On behalf of the Australian Dental Association, it was submitted that most dentists would apply the Gillick test when treating unaccompanied minors, although they may not generally know that this was the legal terminology for what they simply consider to be a common sense approach: see Australian Dental Association (NSW Branch), Submission, 1, 3.

4. For views put forward in submissions in relation to particular types of health care, see para 6.64-6.86.

5. See para 5.6-5.33 below.

6. See Recommendation 8 below.

7. See para 1.25.

8. Most Australian jurisdictions have legislation regulating young people’s right to consent in specific situations, such as consent to organ and tissue donation and blood donation and transfusion (Transplantation and Anatomy Act 1978 (ACT) Part 2 Div 2.3, Div 2.5; Transplantation and Anatomy Act 1979 (Qld) Part 2 Div 2A, s 18, 20; Transplantation and Anatomy Act 1983 (SA) s 12-13, 19; Human Tissue Act 1985 (Tas) s 12, 19, 21; Human Tissue Act 1982 (Vic) Part 2 Div 3, s 22, 24; Human Tissue and Transplant Act 1982 (WA) s 12-13, 19, 21; Human Tissue Act 1983 (NSW) s 10, 11, 11A, 20, 20A; or termination of pregnancy (Criminal Code 1983 (NT) s 174(4)(b)). See para 1.32-1.42.

9. The Act recognizes the competence of people aged 16 or above to “make decisions” about their treatment as validly and effectively as an adult, which presumably includes the competence to refuse treatment: see Consent to Medical Treatment and Palliative Care 1995 (SA) s 6. However, the test to assess the competence of a child (that is, a person below 16) refers only to the competence to consent to treatment: see Consent to Medical Treatment and Palliative Care 1995 (SA) s 12.

10. See South Australia, Working Party on Consent to Treatment, Report of the Working Party on Consent to Treatment (December 1983), 22; Western Australian Law Reform Commission, Medical Treatment for Minors, Project 77, Part 1, Discussion Paper (June 1988), [1.2]. The original terms of reference from the Standing Committee of Commonwealth and State Attorneys-General are reproduced as Appendix 1 to the Discussion Paper of the Western Australian Law Reform Commission.

11. A private member’s bill had been introduced in the South Australian Parliament, and was then referred to a Select Committee of the Legislative Council for comment. The Select Committee published a report in July 1978: see 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).

12. South Australia, Working Party on Consent to Treatment, Report of the Working Party on Consent to Treatment (December 1983).

13. Consent to Medical and Dental Treatment Act 1985 (SA), repealed by the Consent to Medical Treatment and Palliative Care Act 1995 (SA), following a report of a Select Committee of the House of Assembly into the law and practice relating to death and dying: see South Australia, Parliament, House of Assembly, Select Committee on the Law and Practice Relating to Death and Dying, Final Report Of The Select Committee On The Law And Practice Relating To Death And Dying (1992).

14. See Queensland, Law Reform Commission, Consent to Health Care of Young People, Report 51 (1996). To date, the recommendations of the QLRC have not been implemented.

15. The proposal of the Western Australian Law Reform Commission was phrased similarly, although it was expressed in terms limited to consent, and not refusal. It proposed that legislation should “enable children of 16 or over to give a valid and sufficient consent to medical treatment to the same extent as if they were of full age”: Discussion Paper (June 1988), [5.12]. The Western Australian Law Reform Commission did not specifically discuss its proposal in relation to a 16-year-old’s right to refuse medical treatment. However, it seemed to imply that the right to consent would include a right to refuse when it noted that its proposal would remove any parental right “to override the consent to medical treatment, or refusal of consent to medical treatment, of a child of 16 or over”: [5.12].

16. South Australia, Select Committee of the Legislative Council on the Minors (Consent to Medical and Dental Treatment) Bill 1977-78, Report (July 1978), [4]; South Australia, Working Party on Consent to Treatment, Report of the Working Party on Consent to Treatment (December 1983), 23.

17. South Australia, Working Party on Consent to Treatment, Report of the Working Party on Consent to Treatment (December 1983), 23.

18. Western Australian Law Reform Commission, Medical Treatment for Minors, Discussion Paper, Project 77, Part I (June 1988), [5.11].

19. For the recommendations and discussion of the Queensland Law Reform Commission relating to the 16 and 17-year age group, see Queensland Law Reform Commission, Consent to Health Care of Young People, Report 51 (1996) vol 2, Ch 12.

20. See in particular Queensland Law Reform Commission, Consent to Health Care of Young People, Report 51 (1996) vol 2, 269-270. The Commission also noted that its competency test for 16 and 17-year-olds would provide extra protection for young people of this age in relation to refusal of health care.

21. South Australia, Working Party on Consent to Treatment, Report of the Working Party on Consent to Treatment (December 1983), 26. Section 12 of the Consent to Medical Treatment and Palliative Care Act 1995 (SA) now provides to this effect, though with an important qualification relating to best interests: see below para 5.15.

22. Western Australian Law Reform Commission, Medical Treatment for Minors, Discussion Paper, Project 77, Part 1 (June 1988), [5.15].

23. See Queensland Law Reform Commission, Consent to Health Care of Young People, Report 51 (1996) vol 2, 199-201.

24. Similarly, it is questionable whether the second element of the Queensland Law Reform Commission’s test, requiring the young person to communicate his or her decision, would add anything to the common law test in practice, since in order for a doctor to determine a young patient’s understanding the young patient must presumably be able to communicate with the doctor in some way.

25. Western Australian Law Reform Commission, Medical Treatment for Minors, Discussion Paper, Project 77, Part 1 (June 1988), [5.17].

26. Western Australian Law Reform Commission, Medical Treatment for Minors, Discussion Paper, Project 77, Part 1 (June 1988), [5.12], [5.15].

27. Western Australian Law Reform Commission, Medical Treatment for Minors, Discussion Paper, Project 77, Part 1 (June 1988), [8.7]-[8.8]. It was considered that it would be appropriate to adopt the same guidelines for the treatment of adult patients.

28. Originally, the Consent to Medical and Dental Treatment Act 1985 (SA), subsequently repealed and replaced by the Consent to Medical and Palliative Care Act 1995 (SA). Section 12 of the 1995 Act deals with the competence of children to consent to medical treatment.

29. In the United Kingdom, the courts have interpreted a similar provision as allowing them an overriding right to intervene and act contrary to a 16 or 17-year-old’s decision where the young person’s best interests so required: In re W (a minor) (medical treatment: court’s jurisdiction) [1993] Fam 64. In the absence of case law, it is arguable that the same principle applies to the operation of the South Australian legislation, which is limited by the parens patriae jurisdiction of the Supreme Court to protect a young person’s best interests: see D Worswick, The Law Governing Children Consenting To Medical Treatment In Australia (Thesis submitted in fulfillment of the requirements for the research degree of Master of Laws, Flinders University of South Australia, 2001), 115.

30. Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 12.

31. Western Australian Law Reform Commission, Medical Treatment for Minors, Discussion Paper, Project 77, Part 1 (June 1988), [5.24]; Queensland Law Reform Commission, Consent to Health Care of Young People, Report 51 (1996) 257-258. See too the Scottish Law Commission, which also decided against such a requirement: Report on the Legal Capacity and Responsibility of Minors and Pupils (Scot Law Com No 110, 1987), [3.75-3.77].

32. 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.

33. Queensland Law Reform Commission, Consent to Health Care of Young People, Report 51 (1996) vol 2, 256-257. By contrast, as noted in para 5.11, competent young people aged 16 and 17 would be able to consent to (and refuse) medical treatment that was not in their best interests under the statutory scheme recommended by the Queensland Law Reform Commission.

34. Queensland Law Reform Commission, Consent to Health Care of Young People, Report 51 (1996) vol 2, 235.

35. Western Australian Law Reform Commission, Medical Treatment for Minors, Discussion Paper, Project 77, Part 1 (June 1988), [6.1]-[6.22]. This approach was not intended to apply to sterilisation and other methods of long-term pregnancy prevention, for which it was considered court authorisation should be required: [6.23]-[6.30].

36. Queensland Law Reform Commission, Consent to Health Care of Young People, Report 51 (1996) vol 2, 214-215, Ch 17.

37. Section 16 of the Infants Act 1973 applied only to young people aged 16 and over (therefore leaving the common law to govern the position of young people below the age of 16) and allowed a medical practitioner to provide treatment without facing liability for trespass based upon the young person’s consent, but only if a reasonable effort had been made first to obtain the consent of a parent or guardian, or to obtain a written opinion from a second practitioner. This section was replaced in 1992 by the Miscellaneous Statutes Amendment Act 1992 which came into force on 1 January 1993. The amending Act replaced s 16 with the provision as it currently appears. The section was renumbered as s 17 in the 1996 Statute Revision.

38. While the word “codification” was used, it is clear from subsequent cases that this was not meant to imply that the provision replaced entirely the application of the common law in this area. It has since been held (in one case, by the same judge, Huddart JA, who decided Ney v Canada (Attorney General) (1993) 102 DLR (4th) 136) that the provision under the Infants Act was not inconsistent with the common law, and did not exclude the operation of the court’s parens patriae jurisdiction at common law: see Van Mol v Ashmore (1999) 168 DLR (4th) 637; B v British Columbia (Director of Child, Family and Community Service) [2005] BCSC 573.

39. See Ney v Canada (Attorney General) (1993) 102 DLR (4^th) 136.

40. Manitoba, Law Reform Commission, Minors’ Consent To Health Care, Report 91 (1995) 17.

41. See Ney v Canada (Attorney General) (1993) 102 DLR (4th) 136.

42. See J Broom, “The recent amendment to the Infants Act: a look at some of the legal issues” (1993) 51 The Advocate 391.

43. See para 4.12.

44. The basis for arguing that there was greater scope for parental input at common law was again Lord Fraser’s guidelines in Gillick. It should be noted that following publication of Broom’s article, the decision in Ney v Canada (Attorney General) (1993) 102 DLR (4^th) 136 was handed down, which held that the requirement in (then) s 16(3) of the Infants Act for the practitioner to make reasonable efforts to determine that the health care was in the young person’s best interests would generally require consultation with parents.

45. However, the cases have involved the treatment of adults with alleged mental illnesses rather than young people whose capacity is under challenge because of their age: for example, see Starson v Swayze [2003] 1 SCR 722; Fleming v Reid (1991) 82 DLR (4th) 298; Sevels v Fleming (2007) CanLII 18577 (OnSC).

46. See Neto v Klukach [2004] OJ No. 394 (Day J, Ontario Superior Court of Justice).

47. See Starson v Swayze [2003] 1 S.C.R. 722. The differences between the majority and dissenting judges lay not in their interpretation of the statutory test but in its application to the facts.

48. Consent to Treatment and Health Care Directives Act 1988 RSPEI 1988, c.C-17.2 (Prince Edward Island) s 3.

49. Consent to Treatment and Health Care Directives Act 1988 RSPEI 1988, c.C-17.2 s 7(1).

50. See Medical Consent of Minors Act, SNB 1976, c.M-6.1 (New Brunswick), s 2.

51. See Medical Consent of Minors Act, SNB 1976, c.M-6.1 (New Brunswick), s 3(1).

52. Civil Code, RSQ 1992, c.C-1991 (Quebec) art 14, 16.

53. Civil Code, RSQ 1992, c.C-1991 (Quebec) art 17, 18.

54. See Great Britain, Committee on the Age of Majority, Report of the Committee on the Age of Majority (Cmnd. 3342, 1967).

55. See In re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64.

56. It has been argued that this inserts a best interests qualification to the right to consent: see M McDowell, “Medical treatment and children: assessing the scope of a child’s capacity to consent or refuse to consent in New Zealand” (1997) 5 Journal of Law and Medicine 81, 91.

57. See Tompkins J in Auckland Healthcare Services Ltd v Liu (unreported, High Court, Auckland, 11 July 1996, M812/96) at 7.

58. See M McDowell, “Medical treatment and children: assessing the scope of a child’s capacity to consent or refuse to consent in New Zealand” (1997) 5 Journal of Law and Medicine 81, 92.

59. See Care of Children Act 2004 (NZ) s 36(5)(a).

60. See Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 (NZ).

61. See Right 7.

62. 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.

63. By reason of s 49 of the Minors (Property and Contracts) Act 1970 (NSW), which will be repealed: see Recommendation 8.

64. See Chapter 9.

65. See 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.

66. 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.

67. See para 5.26-5.27.

68. See Starson v Swayze [2003] 1 SCR 722.

69. See para 4.53-4.69.

70. See para 1.54-1.64.

71. Doctors Reform Society, Submission, 2; S Siedlecky, Submission, 2; Commission for Children and Young People, Submission, 2.