Updates and background for this project (Digest)

• Introduction
• Parents as decision makers
• Substitute decision makers other than parents
• Necessary treatment

INTRODUCTION

6.1 Except in cases of emergency,¹ a health practitioner who treats a patient without consent exposes himself or herself to criminal or civil liability.² Where a patient is incompetent to give consent, a practitioner must obtain consent from a person authorised to make decisions on behalf of the patient. In the case of young people, that person is most commonly the parent. However, there are cases where, because of family circumstances, or the delicate nature of certain health concerns affecting young people, a parent is not available, not willing or, perhaps, incompetent to give consent to treatment. In these circumstances, it may be unclear to health practitioners who can provide a valid consent in place of the parent, thus jeopardising the young person’s access to timely and appropriate health care. The Commission believes that in cases such as these, the health needs of the young person should primarily be the concern of other people with an interest in his or her health and well-being. A clear statutory hierarchy of such people will give health practitioners confidence to treat young people without fear of liability.

6.2 There may be situations where there is no person directly involved in the care of a young person who lacks capacity to consent or such young person feels that they cannot approach a parent about a sensitive health problem affecting them, preferring not to seek treatment rather than running the risk of their parents being informed. In these cases, the Commission considers that it is important, at least for certain health practitioners, to administer treatment to a young person without a valid consent in circumstances where it is necessary and in the interests of the young person’s health and well-being that treatment be given without delay, even though the circumstances may not constitute an emergency. In reaching our recommendations, we are guided by the principle that the law should not impede a young person’s access to prompt and appropriate health care.

PARENTS AS DECISION MAKERS

Who is a parent?

6.3 The parents of a young person are usually the most appropriate persons to give consent to medical treatment for that young person where the young person is not competent to consent to their own health care. The major piece of legislation that deals with parents’ rights and responsibilities is the Family Law Act 1975 (Cth). A parent of a child or young person is a person having parental responsibility for the child or young person. In relation to a child who has been adopted, parent includes the adopted parent of the child.³

6.4 Defining a parent is a far more complicated exercise today in light of the great diversity of family structures that exist, and the diverse family arrangements within these family types. Increased numbers of blended and step-parent families, gay and lesbian families, and children born using assisted reproductive technologies, challenge traditional family stereotypes in which a child is raised by two biological and heterosexual parents. In some families today, there may be several adults in a young person’s life who exercise a parental role in a social or functional sense. In Aboriginal and Torres Strait Islander families, for example, it is common for children to be raised by kin. In some families, the biological parents of a young person may not be his or her social or functional parents, or even his or her legal parents. This poses great difficulties for the health practitioner in terms of identifying the person authorised to give consent to treatment for the incompetent young person.

6.5 The Minors (Property and Contracts) Act 1970 (NSW) does not define parent or guardian. It is arguable that it has the same meaning as that provided under the more recent Children and Young Persons (Care and Protection) Act 1998 (NSW), which defines parent as one having parental responsibility for the child, consistently with the Family Law Act 1975.⁴ For clarity and consistency, the Commission has recommended that legislation resulting from this Report should define parent as one having parental responsibility in the same terms as the Children and Young Persons (Care and Protection) Act 1998.⁵

Parental responsibility under the Family Law Act

6.6 Since June 1996,⁶ each parent has joint parental responsibility for children under 18 years unless a court order provides otherwise.⁷ Parental responsibility is defined as “all the duties, powers, responsibilities and authority, which, by law, parents have in relation to children”.⁸ They have responsibility for a whole range of matters affecting children including, for example, education, choice of religion, maintenance and financial support, and making decisions regarding medical treatment.

6.7 Parental responsibility is not affected by the nature of the relationship between the parents. It continues, for example, even if the parents separate or remarry, and is not affected by whether the child lives with the parent or not.⁹

6.8 Parental responsibility can be varied or displaced by:

• an order of any court,¹⁰ including a parenting order under the Family Law Act 1975 or an order of the Children’s Court or the Guardianship Tribunal; or by
• a parenting plan entered into voluntarily by both parents under the Family Law Act 1975.¹¹

6.9 Any person with an interest in the care, welfare or development of a child can apply to the Family Court for a parenting order conferring parental responsibility on that person.¹² Parenting orders¹³ may deal with who a child is to live with, contact, child maintenance and any aspect of the care, welfare or development of the child.¹⁴ This includes giving consent to medical treatment.

6.10 Parenting orders need not be made in favour of a parent. They can be made in favour of a person other than a parent of the child, including a grandparent or other relative of the child¹⁵ or indeed, on “some other person”.¹⁶ In 2003, there were 22,500 grandparent families¹⁷ raising 31,100 children aged under 17 years, representing 1% of all families with children.¹⁸

6.11 When deciding whether to issue a parenting order in favour of a person, the court must consider the child’s best interests as its paramount consideration.¹⁹ It must also apply a presumption that it is in the best interests of the child for both parents to have equal shared parental responsibility for the child, unless there is evidence of family violence or abuse.²⁰ Where parental responsibility is to be shared by two or more persons, the order may set out how those persons consult with each other about decisions to be taken.²¹ Once a court has made a parenting order allocating shared parental responsibility to two or more persons, the major decisions for the long-term care and welfare of a child must be made jointly unless a court otherwise provides.²² Major long-term issues are defined in s 4(1) of the FLA and include, but are not limited to, matters relating to the child’s health.²³

Should either parent be able to give consent to medical treatment?

6.12 In its Issues Paper on Minors’ Consent to Medical Treatment, (“IP 24”), the Commission asked whether a health practitioner should be able to rely on the consent of just one parent.²⁴ The wording of s 49 of the Minors (Contracts and Property) Act 1970 (NSW) makes it clear that the consent of only one parent or guardian is sufficient in situations to which that legislation applies. This is the law more generally. Speaking about the law of consent at common law, Lord Donaldson said:

[C]onsent by itself creates no obligation to treat. It is merely a key which unlocks the door. … [I]n the ordinary family unit where a young child is the patient there will be two keyholders, namely the parents, with a several as well as a joint right to turn the key and unlock the door. If the parents disagree, one consenting and the other refusing, the doctor will be presented with a professional and ethical, but not with a legal, problem because, if he has the consent of one authorised person, treatment will not without more constitute a trespass or a criminal assault.²⁵

6.14 However, recent amendments to the Family Law Act 1975 provide that where there is an order for equal shared parental responsibility, parents have a duty to co-operate and come to joint decisions regarding major health issues affecting their child, unless the Court provides otherwise.²⁶ The effect of the amendments, as Professor Richard Chisholm points out, is:

… that each parent has parental responsibility (not that they share it), and [they must] cooperate (on major matters) only when the court makes an order for equal shared parental responsibility.²⁷

6.16 The Health Care Complaints Commission receives a small number of complaints from estranged parents complaining that medical treatment was administered to their child without their consent, in contravention of parenting orders. These complaints are generally resolved quickly at the conciliation stage. Although the doctor is legally entitled to rely on the consent of one of the parents, they are generally happy to agree to refrain from further treatment unless both parents give their consent.³²

When there is a dispute between the parents

6.17 Where the doctor becomes aware of a dispute between the parents about the provision of medical treatment, ethical issues arise. Illustrative of this scenario are recent English immunisation cases. In two separate but very similar cases, the (estranged) fathers of two young girls sought court orders for their children to be immunised as was appropriate for their age against the wishes of their mothers, both of whom had the primary care of the children.³³ Relying on expert evidence, the trial judge decided that the benefits of immunisation outweighed the concerns, and that it was therefore in the best interests of the children that they be immunised.³⁴ Affirming this decision, the English Court of Appeal added that immunisation fell within a “small group of important decisions” which should only be made if there was agreement between all those with parental responsibility for the child.³⁵ Another “important and irreversible” decision, which the English courts have held should not be taken except with the consent of both parents, is non-therapeutic circumcision.³⁶

6.18 Where doctors are aware of a dispute between the parents, they are effectively put on notice that there may be consent issues. This is particularly so where one of the parties threatens to bring, or commences, an action in a court. What the English cases show is that a court, exercising its parens patriae jurisdiction, can require that for certain treatments or medical procedures, it is in the child’s best interests for both parties to consent. Although the issue has not been tested in NSW, a prudent doctor would be unlikely to continue to treat a child or young person when he or she became aware that the medical treatment was against the wishes of one of the parents.

6.19 The Minors (Property and Contracts) Act 1970 (NSW) makes no reference to a situation where the parents are in dispute about their child’s medical treatment, and how that dispute should be resolved. Currently, where parents cannot agree on medical treatment for their child, there is provision for the final decision to be made by a court. The Family Court, for example, has a wide jurisdiction to make orders for the welfare of a child of a marriage, including orders concerning the child’s medical care.³⁷ The Supreme Court, too, has a limited jurisdiction over the medical treatment of children.³⁸ Anyone with an interest in the health and welfare of the young person could begin proceedings in either jurisdiction.

6.20 There is also provision under the Children and Young Persons (Care and Protection) Act for a parent, young person or any other person to ask the Director General of the Department of Community Services for assistance if there is a serious or persistent conflict between the parents and the young person of such a nature that it compromises the young person’s safety, welfare or well-being.³⁹ Once such a request is received, the Director General may provide advice and assistance to the parties concerned to help resolve their conflict without recourse to legal proceedings, or to enable the parties to have access to appropriate services.⁴⁰ Furthermore, any person who suspects that a young person is at risk of harm may make an anonymous report to the Director General.⁴¹ Section 23 defines risk of harm to include the circumstance where the parents or caregivers have not arranged, or are unable or unwilling to arrange, for the young person to receive medical care.

Young people who are parents

6.21 In NSW, 3386 children were born to teenage mothers in 2003.⁴² The issue that arises is whether these young parents should be able to consent automatically to the medical treatment of their children regardless of their competency to give consent.

6.22 Parenthood does not, by itself, make a person under 18 years competent to make decisions about his or her own medical care or that of his or her own children.⁴³ Even in the case of marriage of a person under 18 years of age, any emancipatory effect can only be conferred by statute.⁴⁴

6.23 Little guidance is provided in the general law on parental responsibility for the health care of children, which does not distinguish parents who are under 18 from those who are 18 or older. This uncertainty can create a dilemma for the health practitioner who must decide whether to treat the child assuming competence on the part of the young parent, or only give treatment where the young parent is assessed as competent to give consent. The dilemma will be most evident where the child’s parents are both under 18 and not Gillick competent; and where the parents, regardless of age, have a mental illness or intellectual disability that impairs their ability to understand.

6.24 Neither situation has been the subject of case law. In practice, most practitioners are unlikely to question the competence of a young parent who presents his or her child for treatment.⁴⁵ One submission suggested that parents who are under 18 should be able to consent to or refuse treatment for their children, provided they are competent to do so. Where the parent(s) are not competent to give consent, the requisite consent should be obtained from another person or a tribunal.⁴⁶

6.25 Law reform agencies that have considered this question, and US States that have enacted legislation, have adopted one of two broad approaches:

• allow a young person who is capable of consenting to his or her own health care to consent to that of his or her child;⁴⁷ or
• confer a statutory right on the young person on the basis of parenthood to consent to the health care of his or her own child and/or his or her own healthcare.⁴⁸

6.27 As the question of competence to consent to medical treatment has to be judged in relation to the particular treatment proposed,⁵¹ the Commission does not understand how the law can properly be drawn in propositions that appeal to the supposed “general” competency or inability of a child’s parents to consent to medical treatment. To do so deflects attention away from the real question, which is whether the young person understands the treatment proposed. Once this is appreciated, we do not understand how a young person who is not competent to consent to that particular medical treatment, can possibly be “deemed” to be able to do so simply because that treatment is to administered to a third person, in this case their children. The protection of both parties and of the health care providers necessitates the negation of this option. Our view is, therefore, that young people should only be capable of consenting to medical treatment of their children if they are competent to consent to that particular treatment. This restates, for this context, and out of abundance of caution, the general competency rule in Recommendation 4.

6.28 In making this recommendation, we stress the following:

• A young person’s competence to consent to the particular treatment in this respect involves an understanding of what that treatment means for their child, not whether they would be capable of consenting to that treatment if it were performed on themselves. If it were otherwise, a mother would, by definition, be incapable of consenting to treatment on her male child where the treatment relates to a condition that only affects males.
• Where the young parent is not competent to give consent to medical treatment for their child, the consent must be obtained from a substitute decision maker. The substitute decision maker is the person who performs that role for the young person’s child (not the young person). Where that is not determined by a court order or parenting plan,⁵² it will have to be determined in accordance with Recommendation 12.

The legislation should provide that a young person is competent to accept or refuse health care for his or her children if, in the opinion of the health practitioner offering the care, the young person understands the information relevant to making a decision about the health care, and appreciates the reasonably foreseeable consequences of that decision.

6.29 In the vast majority of cases, treating health practitioners will be able to obtain a valid consent from a young person’s parent quickly and easily so that the young person receives appropriate medical care without delay. However, there are situations where parental consent is not easily obtained, thus potentially jeopardising the health outcomes for the young person as treatment is delayed, or, worse, denied because of health practitioners’ fear of liability.

6.30 There are a number of situations in which legislation recognises the need for the easy identification and availability of decision-makers other than the young person’s parents to consent generally to the medical and dental treatment of young persons. These include:

• Young persons between the ages of 16 and 18 who, by reason of their need for a guardian, are subject to a guardianship order under the Guardianship Act 1987 (NSW).⁵³ Depending on the terms of the order, the guardian may consent to the carrying out of medical or dental treatment on the young person.⁵⁴
• Young people in out-of-home care under the Children and Young Persons (Care and Protection Act 1998 (NSW).⁵⁵ Out-of-home care is residential care and control of a young person at a place other than his or her usual home by a person other than his or her parents, for a specified period of time.⁵⁶ An authorised carer has the authority to consent to: medical or dental treatment, not involving surgery, for the young person in their care; medical or dental treatment involving surgery that a medical practitioner or dentist certifies in writing needs to be carried out as a matter of urgency in the best interests of the young person; non-urgent medical or dental treatment involving surgery if the authorised carer has a delegation of that authority in accordance with the Act.⁵⁷ The carer’s consent to medical treatment for a child aged under 16 years is as effective as consent given by a parent or guardian.⁵⁸

Homeless youth

6.32 Substitute decision makers are clearly needed where the young person has little or no contact with their parents or where the parents are unwilling or too disinterested in their care to give consent, and where no alternative legal guardian has been appointed for the young person. According to the 2001 Census, of the 100,000 people across Australia who are homeless, nearly half are under 24 years, and a quarter are teenagers aged between 12 and 18 years.⁶⁰ In NSW, 10 in every 1000 young people are homeless.⁶¹ Most homeless young people live in youth refuges or with family or friends or in squats, moving frequently between locations.

6.33 Homeless young people present significant health problems: they are at increased risk of malnutrition, contracting sexually transmitted diseases, including potentially fatal ones like HIV/AIDS, and experiencing psychotic episodes.⁶² A number of homeless young people have experienced physical and or sexual abuse, or witnessed domestic violence, and, as a result, are emotionally disturbed.⁶³ They are more likely than young people in the general population to engage in risk behaviours. Recent research with homeless youth in Melbourne reveals that almost 80% have drug and alcohol problems and over half use hard drugs; 41% had attempted suicide at some point in their lives; one-third had been pregnant during their lifetime; almost one fifth identified as non-heterosexual; over half had unprotected sex and 5% were engaged in sex work.⁶⁴

6.34 Despite their need for services including mental health and general health services, homeless young people experience difficulties accessing mainstream services for a number of reasons, including because of issues of consent.⁶⁵ They are also typically mistrustful of anyone in authority so are unlikely to seek treatment from general practitioners. If they do present at a clinic or outpatient service of a hospital, there are concerns that homeless young people will not adhere to a course of treatment or present for follow-ups. As one submission observed:

[Homeless young people] may not have their own Medicare card, and cannot afford fees, so that primarily they will seek treatment in hospital outpatient departments and clinics. Homeless young people often have a complex mix of medical and social problems, such as drug taking, inadequate support, inability to afford medication or a proper diet and do not reliably follow medical instructions. They are often discharged from hospital without adequate follow-up.⁶⁶

6.35 Young people, ranging in age from 10 to 21, may be detained in one of nine Detention Centres in NSW, administered by the Department of Juvenile Justice under the Children (Detention Centres) Act 1987 (NSW). Some young people aged over 16 years may be committed to a Correctional Centre,⁶⁷ such as Kariong Juvenile Correction Centre, which is run by the Department of Corrective Services.

6.36 The Department of Juvenile Justice reports that, on average, there are 331 young people in detention each day. Of these, about half are serving custodial sentences, while the other half are on remand, awaiting the completion of court proceedings. Half of these detainees are from an Aboriginal or Torres Strait Islander background.⁶⁸

6.37 Rising numbers of young people in detention centres are presenting with increasingly complex health problems, including chronic illnesses.⁶⁹ A 2006 study of young people serving community orders shows that significant numbers have low intelligence and/or learning problems.⁷⁰ There are also large numbers of young people with brain injuries. Typically they have poor concentration and large numbers are at risk of suffering from anxiety or depressive disorders.⁷¹ They are treated by a diverse range of clinicians in detention centres including medical practitioners, nurses, dentists, sexual health experts and psychologists, co-ordinated by the NSW Justice Health Service.⁷²

6.38 Almost 90% of young people in detention in NSW were not living with their family prior to their detention. They were either estranged from their parents or were orphaned.⁷³ Obviously, there is at least a potential need for substitute decision makers to consent to medical treatment for such young people if they lack capacity to do so. The Children (Detention Centres) Act 1987 (NSW) does make provision for the medical treatment of young people in Detention Centres, but not in Correctional Centres. It requires the Director General of the Department of Juvenile Justice to ensure that adequate arrangements exist to maintain the physical, psychological and emotional well-being of detainees,⁷⁴ and requires that each detainee be supplied with such medical attendance, treatment and medicine as is necessary to promote his or her health and well-being, and that of other detainees or any other person.⁷⁵

6.39 The legislation does not, however, alter, or elaborate on, the general rules relating to consent to medical treatment, save that it authorises a doctor to administer medical treatment on a detainee without his or her consent “if the Chief Executive Officer, Justice Health is of the opinion, having taken into account the cultural background and religious views of the detainee, that it is necessary to do so in order to save the detainee’s life or to prevent serious damage to the detainee’s health”.⁷⁶ Medical treatment in these circumstances is taken to have been carried out with the detainee’s consent.⁷⁷ These provisions mirror those that apply to the adult prison population in the Crimes (Administration of Sentences) Act 1999 (NSW).⁷⁸ The legislation also dispenses with the need for consent in its requirement that a detainee must, on admission to a detention facility, undergo a medical examination to assess his or health, and determine what treatment, if any, is required.⁷⁹

Existing models for substitute decision-makers

6.40 There are several statutory examples of hierarchies of substitute decision makers that are potentially of use in identifying who should be able to give a valid consent to the medical treatment of a young person who cannot consent to their own health care.

“Person responsible” under the Guardianship Act 1987 (NSW)

6.41 Part 5 of the Guardianship Act 1987 (NSW) sets out a hierarchy of “persons responsible” who can give consent to the medical and dental treatment of another person where that person lacks capacity to give consent themselves. The twin purposes of Part 5 are to ensure that:

• people are not deprived of medical or dental treatment merely because they lack the capacity to give consent to that treatment; and
• any medical or dental treatment that is carried out is for the person’s health and well-being.⁸⁰

6.43 In relation to a person other than a young person or a person in the care of the Director General, the Guardianship Act sets out a hierarchy of persons from whom the “person responsible” is to be ascertained.⁸⁴ That hierarchy is, in descending order:

(a) the person’s guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,

(b) the spouse of the person, if any, if:


(i) the relationship between the person and the spouse is close and continuing, and

(ii) the spouse is not a person under guardianship,


(c) a person who has the care of the person,

(d) a close friend or relative of the person.

6.45 A close friend or relative is defined as a person who maintains both a close personal relationship with the other person through frequent personal contact, and a personal interest in the other person’s welfare. A person is not to be regarded as being a close friend or relative if he or she is being paid for any services that he or she performs for the other person in relation to the person’s care or has a financial interest in those services.⁸⁷

6.46 If the person responsible declines to exercise any of the functions, or if a medical practitioner or other qualified person certifies that the person is not capable of exercising the functions, the person next in the hierarchy becomes the person responsible.⁸⁸ The person responsible can consent to minor⁸⁹ or major⁹⁰ treatment. But if the treatment is “special”, consent must be sought from the Guardianship Tribunal.⁹¹

6.47 The Guardianship Act further recognises that there may be some instances where there is no person responsible or the person responsible cannot be located, or is unable or unwilling to make a decision. In these situations, and if the treatment is minor, the Guardianship Act permits a medical practitioner to treat the person without consent so long as the treatment is necessary and appropriate and the person does not object.⁹² If the person objects or the treatment is major, consent must be sought from the Guardianship Tribunal.⁹³

Primary carer model under the Mental Health Act 2007

6.48 One of the objects of the new Mental Health Act 2007 (NSW), after providing for the appropriate care, treatment and control of people with mental illness, is “to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care, treatment and control.”⁹⁴

6.49 Among other things, this Act requires a mental health facility to notify the primary carer of a person that he or she has been detained under the Act, except in certain circumstances.⁹⁵ It also requires notice or information to be shared with the primary carer of a person if any one of a series of events occurs, including for example, where it is proposed to transfer the patient to another facility or where it is proposed to apply to the Tribunal for electroconvulsive therapy. The Act also allows a person to be detained in a mental health institution at the request of a “primary carer” or relative or friend of the person.⁹⁶

6.50 A primary carer of the patient is defined as:

(a) the guardian of the patient, or

(b) the parent of a patient who is a child⁹⁷ (subject to any nomination by a patient referred to in paragraph (c)), or

(c) if the patient is over the age of 14 years and is not a person under guardianship, the person nominated by the patient as the primary carer under this Part under a nomination that is in force, or

(d) if the patient is not a patient referred to in paragraph (a) or (b) or there is no nomination in force as referred to in paragraph (c):


(i) the spouse of the patient, if any, if the relationship between the patient and the spouse is close and continuing, or

(ii) any person who is primarily responsible for providing support or care to the patient (other than wholly or substantially on a commercial basis), or

(iii) a close friend or relative of the patient.

New Zealand

6.52 The Care of Children Act 2004 (NZ) provides a relatively simple hierarchy of decision makers where consent to health care procedures by another person is necessary or sufficient. It provides that consent may be given by;

• a guardian,¹⁰¹ or, where there is no guardian, or where they cannot be found or are not capable of giving consent,
• a person who has been acting in the place of a parent, or where there is no such person,
• a District Court judge or the chief executive of the Department (responsible for administering the Children, Young Persons, and Their Families Act 1989). ¹⁰²

6.53 In IP 24, the Commission asked whether a caregiver or a relative other than a young person’s parents should have authority to consent to or refuse medical treatment for the young person.¹⁰³ Submissions received in response to this issue argued that the primary decision maker should be the child or young person’s parent, or the caregiver who has been given parental responsibility either under the Family Law Act 1975 (Cth) or the Children and Young Persons (Care and Protection) Act 1998 (NSW).¹⁰⁴ Submissions agreed that, where the parents are absent or themselves incompetent to make decisions for their child, authority should be given to a carer or relative to provide the necessary consent.¹⁰⁵

6.54 The Shopfront Youth Legal Centre submitted that there is a place for the involvement of other family members or caregivers, especially where a child lives with extended family members or in alternative accommodation such as a youth refuge, but where no order has been made re-allocating parental responsibility. It submitted that the provisions of the Guardianship Act 1987 (NSW) should be extended to children aged under 16 years, in cases of minor medical treatment. For more serious forms of treatment, but not special treatment,¹⁰⁶ the Shopfront Youth Legal Centre argued that the Guardianship Tribunal be given power to appoint a relative or carer as a guardian for the purpose of making decisions about the child’s treatment.¹⁰⁷

The Commission’s view

6.55 In the vast majority of cases, parents will make health care decisions for young people who lack capacity. Throughout this report, the Commission has acknowledged the primary and significant role of parents in the health care of their children. However, a considerable number of young people do not live in traditional nuclear family settings. Some live in boarding houses, refuges or with friends or relatives. These young people, incompetent to consent to their own health care, are vulnerable members of our community because the absence of a legal guardian potentially impedes their access to timely and appropriate health care.

6.56 The plight of homeless youth highlights, in the starkest manner, the need to put in place an alternative and acceptable system to ensure the delivery of appropriate health care to all young people, regardless of their particular living arrangements. Young people from Aboriginal and Torres Strait Islander communities provide another example. They are often cared for by members of their extended family and kinship groups. Decisions about their care, including medical treatment, are, accordingly, often made by their extended family or kin. These cultural traditions and practices are increasingly being recognised in other areas of the law, including adoption laws,¹⁰⁸ laws relating to care,¹⁰⁹ mental health¹¹⁰ and family law. Submissions that addressed this issue supported the view that the law should expressly recognise these traditional relationships.¹¹¹ It was suggested that one means of achieving this was to expand the definition of “person responsible” for the child or young person.

6.57 In the Commission’s view, there is clearly a need for the law to make provision for persons other than a parent or court-appointed guardian to consent to the medical treatment of young people who lack capacity themselves to consent to such treatment. This will give health practitioners a level of certainty and confidence to treat the young person without risk of legal action against them, and thus ensure that the young person receives appropriate health care. In our view, the best way to achieve this is to provide a statutory hierarchy of persons responsible for making decisions for incompetent young people.

6.58 We have adopted as our template the hierarchy set out in the guardianship legislation, which is substantially mirrored in the other legislative provisions mentioned above, and which was supported in submissions.¹¹² A more precisely defined hierarchy is preferable to the potentially ambiguous notion of “in loco parentis”, which is retained in the New Zealand legislation and in South Australia.¹¹³ A health practitioner may be reluctant to treat a young person if he or she is not certain that the decision maker actually stands in place of a parent. A list gives certainty, even where it contains categories (such as “carer” and “close friend or relative”) that are inherently and potentially contestable. Our consultations with the Guardianship Tribunal revealed that the statutory hierarchy of “persons responsible” works well in practice. While issues of interpretation do arise, such as whether a person is “caring for” a person under guardianship, the Tribunal is well equipped to resolve such issues. It looks at the nature of the relationship and not just the fact of the relationship. The Tribunal advised that medical practitioners appear to understand and cope well with the statutory hierarchy of persons responsible.¹¹⁴

6.59 We would, however, make an addition to the hierarchy as it appears in the Guardianship Act. It is important that the hierarchy cannot be exhausted. The parens patriae jurisdiction of the Supreme Court ensures that this will be the case. However, we are of the view that it is more appropriate that the relatively informal processes of the Guardianship Tribunal, which has experience in approving specified health care both for young people generally¹¹⁵ and for young people with disabilities,¹¹⁶ should be available as, effectively, the last rung in the hierarchy.

6.60 Unlike the position under the Guardianship Act, we do not, however, need to restrict the ability of substitute decision makers to consent only to particular types of treatment on behalf of young persons. For present purposes, the distinction that the Guardianship Act draws between “major” and “minor” treatment is irrelevant. In any event, under the Guardianship Act a substitute decision maker can consent to both major and minor treatment.¹¹⁷ This leaves “special treatment”. We deal with this in Chapter 8, where we point out that such treatment is regulated by the common law in respect of all young people, and should otherwise only be available, with the consent of the Guardianship Tribunal.¹¹⁸

6.61 The Guardianship Act identifies as one of its underlying principles the duty of everyone exercising functions under the Act in respect of people with disabilities to recognise the “importance of preserving the family relationships and the cultural and linguistic environments of such persons”.¹¹⁹ We have recommended that in the interpretation and application of the legislation proposed in this Report, “account shall be taken of the culture, disability, language, religion and sexuality of the young person, and, if relevant, those with parental responsibility for the young person”.¹²⁰ While this may make it strictly unnecessary to do so, we believe that it is important to identify specifically in this context the importance of culture, language, ethnicity and religion as factors integral to the decision making process. To do so accords with the increasing recognition of these factors in various areas of the law¹²¹ and with some of the submissions that we received.¹²²

Recommendation 12

The legislation should provide a hierarchy of “persons responsible” who are authorised to make decisions concerning the health care of a young person where that young person is not competent to accept or refuse health care and no person having parental responsibility for the young person is available or competent to exercise that parental responsibility.

The list should be expressed in descending order, commencing with:

• a guardian of the young person appointed under law;
• a spouse of the young person;
• a person who has the care of the young person;
• a close friend or relative of the young person;
or where none of the above exist, or are available to make a decision as a person responsible,
• the Guardianship Tribunal.
The legislation should define a person who has the care of a young person as a person who provides, without payment, domestic services and support for the young person on a regular basis or who arranges for the young person to be provided with such services and support.

The legislation should define close friend or relative of the young person as a person who has a close personal relationship with the young person through frequent personal contact, and has a personal interest in the young person’s welfare.

In ascertaining the “person responsible” for the young person, the legislation should recognise the importance of:

• the cultural traditions of young Aboriginal and Torres Strait Islander people; and
• the cultural, linguistic and religious background of young people.

6.62 The law allows medical practitioners to treat a young person without consent in emergency situations, that is, in situations where the medical treatment is considered necessary in order to save the person’s life or prevent serious injury to the person’s health.¹²³ But there may be other situations, which fall short of an emergency, where a young person nevertheless needs medical treatment without delay, for example for drug or alcohol abuse or health risks incurred as a result of sexual behaviour. Under our recommended legislative model, a doctor cannot legally treat the young person in these situations without obtaining consent from the young person or his or her parent (or other person responsible). For many young people who lack capacity, and who are either estranged from their parents or, because of the nature of the treatment, do not want their parents to be involved, access to appropriate and timely health care services is made difficult.

6.63 In IP 24, the Commission asked whether there are certain types of conditions in respect of which a health practitioner should be permitted to treat a young person who lacks capacity without a valid consent.¹²⁴ The following conditions and treatments were specifically singled out because they are serious health concerns affecting young people today. The specific areas for treatment are:

• contraceptive advice and prescription (excluding permanent or long-lasting forms of contraception such as sterilisation or injectable hormones);
• sexually transmitted diseases;
• drug and alcohol abuse;
• mental health services;
• pregnancy-related health care; and
• termination of pregnancy.

6.64 Recent research shows that more and more teenagers are sexually active, and at a younger age.¹²⁵ The third national survey of Year 10 and 12 students by the Australian Research Centre in Sex, Health & Society found that adolescents are likely to have multiple partners.¹²⁶ It also concluded that unwanted sex remains a worrying issue with about one-quarter of students (mostly 15 year old girls) reporting that they had unwanted sex because they were drunk or felt pressured.¹²⁷ The study showed that the use of condoms and other forms of contraception remained steady, although 10% indicated they had used no contraceptives at their last sexual encounter.¹²⁸

6.65 Important sources of information for teenagers about sex and contraception are school-based sex education programs, the internet and talking to parents, friends and siblings.¹²⁹ A large proportion of students, however, indicated they were far less confident to discuss such issues with their parents.¹³⁰ In another study in Victoria, adolescents regarded medical practitioners to be an important source of information about sexuality and contraception.¹³¹ Yet many of the doctors in that survey reported feeling uncomfortable giving contraceptive advice to teenagers, particularly to those aged under 16 years because they were unsure of the young person’s rights, their own obligations and their own personal feelings about contraceptive care for younger adolescents.¹³²

6.66 While there are a number of contraceptive methods available to prevent unwanted pregnancies, including the oral contraceptive pill, hormone injections and other barrier methods, the only one that offers protection against sexually transmitted diseases is the condom. Condoms are widely available over the counter at pharmacies, supermarkets, service stations and in some public toilets. They can also be obtained free from some family planning clinics. No age restrictions apply to their purchase and there is no need to see a general practitioner. Condom use is strongly encouraged to prevent the spread of sexually transmitted diseases. Despite this, 30% of sexually active high school students in Australia do not use condoms consistently.¹³³

6.67 The oral contraceptive pill, on the other hand, is available only on prescription from a doctor. It has few substantiated negative side effects and, if used properly, is an effective means of avoiding pregnancy. Whilst health experts advocate the use of both the oral contraceptive pill and condoms to prevent the spread of sexually transmitted diseases and unwanted pregnancies,¹³⁴ about one-third of sexually active high school students in Australia reported using only condoms.¹³⁵ Some submissions have argued that newer long-lasting forms of contraception, such as Depo-Provera (an injectable hormone) and Implanon (a rod implant inserted under the skin), should also be available to young girls, regardless of age.¹³⁶ As they are long-lasting, they may be useful where the young person has difficulty keeping to the dose routine of the oral contraceptive pill. However, their suitability is questioned by some experts because of evidence that they cause a loss of bone mineral density in adolescents at a crucial growing stage.¹³⁷ Both forms have been subject to negative media attention, which, coupled with their prohibitive cost, has affected their uptake.

6.68 Emergency contraception (often referred to erroneously as the “morning after pill”) is available from a general practitioner, a family planning clinic or youth health service. It is a fallback option where a young person has unprotected sex. Since January 2006, emergency contraception is also available without prescription at pharmacies. Before it was available over the counter, teenagers were the most frequent users of emergency contraception at Australian family planning clinics.¹³⁸ In order to be effective, it needs to be taken within 72 hours of unprotected sex. Like condoms, there is no age limit at which a person can purchase the emergency pill. However, the pharmacist will ask the woman about her menstrual cycle and the method of contraception used in order to assess whether she may already be pregnant. Information about possible side effects and follow-up procedures should also be given. The discussion is confidential. Anecdotal evidence suggests that some pharmacists will not sell the emergency contraceptive pill to young girls.

6.69 Without access to contraceptive advice and prescription, teenagers are at great risk of unwanted pregnancies and being infected with a sexually transmitted disease including Hepatitis B, chlamydia and HIV.¹³⁹ Research shows that providing information to young people about sex and contraception does not itself encourage sexual activity; it assists them to practise safe sex.

Sexually transmissible diseases (STDs)

6.70 The risk of contracting a sexually transmitted disease is more acute for young people than for adults as young people tend to have multiple partners, and may lack the confidence to insist on safe sex.¹⁴⁰ Many infections are asymptomatic, and therefore go undiagnosed and untreated with potentially deleterious effects on the health of the young person. Although education campaigns have increased young people’s awareness of STDs,¹⁴¹ the incidence of infection, particularly of chlamydia, has grown more than threefold in the last decade.¹⁴²

6.71 The incidence and control of sexually transmitted diseases is a significant concern and priority for public health. This is evident in public health laws which require health practitioners and laboratories to notify health authorities immediately of certain STDs.¹⁴³ A person who knows that they have a sexually transmitted disease and who has unprotected sex with another person commits an offence, unless they have told the other person and he or she has voluntarily accepted the risk.¹⁴⁴

6.72 Because of the risk to their own health and of others, young people need to be assessed properly for their risk of infection, and treated as a matter of urgency where they have a sexually transmitted disease. Confidentiality is vital in order to secure the confidence and co-operation of young people so that they are honest about any risky behaviour and thus permit a proper appraisal of their risk of infection. The majority of submissions on this issue argued that requiring parental consent deters many young people from seeking treatment for sexually transmitted diseases.¹⁴⁵

Drug and substance abuse

6.73 Drug and alcohol use among young people aged between 10 and 17 years is also a significant problem. Alcohol and cannabis, which are categorised as ‘soft’ drugs, are the most commonly used in this age group. A 2005 survey of secondary school students found that about 86% of students had tried alcohol by the time they were 14 and 70% had consumed alcohol in the month prior to the survey by the age of 17.¹⁴⁶ Eighteen per cent of students were found to have used cannabis during their lifetime.¹⁴⁷ The increased incidence of binge drinking among young people is of topical concern.¹⁴⁸ Many people who start off using alcohol and cannabis end up using ‘hard’ drugs like amphetamines, ecstasy and heroin.¹⁴⁹

6.74 There are recognised links between drug use and involvement in the criminal justice system and homelessness.¹⁵⁰ Among the high risk factors leading juveniles to alcohol and drug abuse and criminal activity are family instability and lack of parental supervision or parental support of drug use.¹⁵¹ Notably, most juveniles in the criminal justice system who seek treatment only do so because they are compelled to by a court order or encouraged to during a period of detention.¹⁵²

Mental health

6.75 Mental illness and behavioural disorders are the main health issues affecting young people in Australia. Research shows that up to 20% of young people suffer from a mental disorder.¹⁵³ Although adolescents with mental health problems transcend the various socio-economic, gender and cultural divides, young people from low-income, blended or sole-parent families are more likely to be affected.¹⁵⁴

6.76 Among the main causes of mental illness in young people are cultural pressures, difficulty in achieving a sense of belonging and identity, and isolation.¹⁵⁵ Same-sex attracted young people, who face issues such as discrimination, bullying, homophobia, victimisation and violence, may be up to six times more likely to attempt suicide compared with the general population.¹⁵⁶ Young homeless people are also greatly affected by mental health problems. Family breakdown, which is one of the major causes of homelessness among young people, is often accompanied by trauma, grief and a disturbed emotional state.¹⁵⁷

6.77 Young people who suffer mental health disorders are more likely to engage in high risk behaviour including drug use, drinking, smoking and suicide ideation.¹⁵⁸ Untreated, depression and other serious mental health disorders are a significant risk factor for suicide and self-harm.¹⁵⁹

6.78 Of adolescents with mental health problems, only one-quarter receives professional help, and only half of those with a serious mental disorder receive treatment. Where treatment is obtained, it is generally provided by family doctors, school-based counsellors and paediatricians.¹⁶⁰ Research shows that young people do not seek treatment for a number of reasons including fear of stigma, lack of knowledge of available services, a belief that nothing can help or that they can manage the issues themselves.¹⁶¹

Pregnancy-related health care

6.79 One of the most common reasons for hospitalisation among young people between 2005 and 2006 was for pregnancy and childbirth.¹⁶² Sixteen in every 1000 adolescents aged 15-19 years become pregnant each year in Australia.¹⁶³ Although this is a decrease from 27.6 in every 1000 reported in 1980, Australia has one of the highest teenage pregnancy and abortion rates in the developed world.¹⁶⁴

6.80 Teenage pregnancy is a significant community concern because of its high associations with a range of poor health and socioeconomic outcomes. Young mothers are at greater risk of medical complications such as hypertension and their babies have a greater risk of low birth weight, prematurity, and stillbirth.¹⁶⁵ Teenage mothers often find it difficult to complete their education, are separated from the child’s father, have little financial resources, and the health of their children is often worse. Children of adolescent parents have increased risk of developmental delay, behavioural problems, substance abuse, early sexual activity and becoming teenage parents themselves.¹⁶⁶

6.81 A significant number of births from unintended pregnancies occur to teenage mothers or young unmarried girls who do not live at home. The recent report of the National Youth Commission Inquiry into Youth Homelessness states that increasingly high numbers of pregnant homeless girls are presenting at some services, and rates are higher for Indigenous and refugee young women.¹⁶⁷ This group faces special medical risks and socioeconomic burdens.¹⁶⁸ There is widespread recognition of the need to encourage young women to access pregnancy-related health care, including infection-screening at the start of the pregnancy and careful monitoring of fetal and personal growth throughout the pregnancy, in order to improve health outcomes for both the mother and the child.¹⁶⁹

Termination of pregnancy

6.82 Although the rates of teenage pregnancy have declined,¹⁷⁰ when it does occur, most girls under 15 years choose to have an abortion. According to data from the Health Insurance Commission, there were 4,310 abortions to teenage mothers in NSW in 2006, an increase of 204 from the previous year.¹⁷¹

6.83 An abortion is lawful where a doctor honestly and reasonably believes that the termination of pregnancy is necessary to preserve the mother from a serious danger to her life or physical or mental health which the continuance of the pregnancy would entail.¹⁷² Young women can consent to a lawful abortion without their parents’ knowledge if they are Gillick competent. However, in practice, abortion clinics in NSW require the consent of a parent or guardian where the young woman is under 14 years old. Where a young woman aged 16 years or over, who lacks capacity to consent because of, for example, an intellectual disability, termination of pregnancy is a special treatment and can only be performed with the consent of the Guardianship Tribunal.¹⁷³

6.84 Where the young woman first consults a general practitioner, the doctor will usually encourage the young woman to talk to her parents and seek their support particularly because of the potential emotional and psychological consequences of abortion.¹⁷⁴ However, some young women will insist that their parents not be told. Where a young woman is competent to give consent, privacy is likely to be respected except in very exceptional cases, for example where there is evidence that the young woman has been a victim of sexual abuse, and mandatory statutory disclosure provisions apply.

6.85 Since 1977, a young woman of any age is permitted to consent to or refuse an abortion in New Zealand.¹⁷⁵ In the United States, on the other hand, a significant number of States have laws which require a medical practitioner to obtain the consent of a young girl’s parents (or a court) for an abortion, or, at the least, notify the parents that their daughter seeks an abortion.¹⁷⁶ The rationale is that such laws will reduce the number of teenage pregnancies (and therefore abortions) and promote abstinence among young people. The success of this strategy is much debated in America.¹⁷⁷ Those opposed to the laws argue instead that it raises the possibility that young women who are too frightened to talk to their parents and too intimidated or time-pressed to seek court approval for an abortion will resort to illegal abortions or try to self-induce a termination, at grave risk to themselves.¹⁷⁸ They also argue that such laws may aggravate already violent or abusive situations, for example, if the young girl is pregnant as a result of sexual abuse by a family member. There are provisions in those American States that require parental notification for the young woman to seek a court order to prevent her parents from being notified. However, this raises its own set of problems. Even if a young woman were able to navigate her way around court processes, and could afford the expense of court proceedings, it takes time to get an approval, which she may not have.

6.86 Abortion arouses strong emotive sentiments in the community. While a majority of the community may support an adult woman’s right to seek an abortion, social acceptance of young girls’ access to abortion services is far less clear. Only three submissions addressed this issue specifically. All were broadly supportive of the view that young women should have access to abortion services, regardless of age or capacity to consent. The National Children’s and Youth Law Centre submitted that it would be an unacceptable infringement of her right to bodily integrity if a young woman were forced to terminate a pregnancy that she wished to continue, or denied a termination if that was what she wanted.¹⁷⁹ The Doctors Reform Society submitted that all young women below 18 years should be deemed competent to consent to termination of pregnancy, even against their parents’ wishes.¹⁸⁰ All the submissions which addressed this issue agreed that the treating doctor should strongly encourage the young woman to discuss her situation with her parents, but ultimately should preserve her confidentiality if she refused to involve her parents, and to offer her counselling.¹⁸¹

Barriers faced by young people to access health services

6.87 Research by the NSW Centre for the Advancement of Adolescent Health shows that the majority of young people, particularly young males, do not access health services despite acknowledging a myriad of health concerns.¹⁸² One-third of young women surveyed, and two-thirds of young men, aged between 12 and 17 years, said they would not seek help for their health concerns, and when they did, were most likely to seek help from family, friends, or others they trusted. When professional help was sought, young people again preferred someone they knew and trusted. The study demonstrated that young people were deterred from accessing health care services because of concerns about confidentiality, embarrassment, lack of knowledge of available services and structural issues related to the accessibility and characteristics of services.¹⁸³

6.88 For young people living in rural areas, the barriers to accessing health services are exacerbated.¹⁸⁴ Young people in these areas complained that there are few health care services available, and long waiting times. There is limited choice of service providers (for example, only one female doctor) in rural areas and hardly any services where bulk-billing is available. Concerns about confidentiality were more pronounced by young people in rural areas. General health concerns, including drug use, bullying, sexual health, stress and depression, were common among young people who lived in both urban and rural and regional areas. However, youth suicide and teenage pregnancy were almost exclusively singled out by young people living in rural areas.¹⁸⁵

The Commission’s approach

6.89 Adolescence and puberty can be a tumultuous time for young people, not uncommonly marked by significant conflict with parents. These conflicts often flare as the young person grows and seeks to assert more autonomy from his or her parents. Even in positive and supportive family relationships, some young people will feel uncomfortable talking to their parents about certain matters such as their sexuality. They may also be apprehensive about seeking contraceptive advice or treatment from medical practitioners if they fear that their parents will find out that they are, or plan to be, sexually active. This is particularly true for young people from cultural or religious backgrounds that disapprove of pre-marital sex. For young people from these communities, their parents are less likely to understand or accept the need for such advice, much less agree to give consent to contraceptive advice or treatment.

6.90 Early prevention or intervention is desirable when it comes to adolescent health problems, with the parents of a young person usually the most appropriate persons to give consent to medical treatment. However, the Commission acknowledges that young people’s concerns about confidentiality are a barrier to their accessing health services.¹⁸⁶ Submissions received by the Commission argued that young people are more likely to seek help and disclose information when they are confident that a service is confidential. While parental participation is important, focusing on the rights of parents risks negative health outcomes for many young people. There is widespread support from medical organisations and professional groups for adolescents’ access to confidential medical care.

6.91 The overarching principle guiding the Commission is that the law should not impede the young person’s timely access to quality health care. As the young person grows older and develops capacity and understanding, the Commission believes that he or she should have a greater role in health decisions. Most submissions received by the Commission agreed that priority should be given to increasing young people’s access to health care services and health information; to remove impediments where possible; and to involve young people in decisions affecting their health and well-being by giving them information in a way that they can understand, and seeking their input, with assistance if necessary, regardless of their capacity to provide a valid consent.¹⁸⁷

6.92 In the area of sexual health, the Commission believes that a young person who is not competent to give consent should nonetheless be able to receive contraceptive advice and treatment without a valid consent where it is obvious to the medical practitioner that the young person will have, or continue to have, unprotected sex, risking infection with a sexually transmitted disease or an unwanted pregnancy. We agree with those submissions that argued that in some cases, particularly for contraceptive advice and prescription, and the treatment of sexually transmitted diseases, it is in the best interests of the health and well-being of the young person (who lacks capacity) to dispense with the requirement for parental involvement.¹⁸⁸

6.93 Equally, we believe it is important for young people to receive treatment for sexually transmitted diseases, regardless of whether or not they have capacity to consent to such treatment themselves. Because of the risk to the young person’s health, and of others, an incompetent young person should nevertheless receive appropriate treatment for sexually transmitted diseases. Any issues of sexual abuse or exploitation that arise in the course of treatment do not detract from the need to treat the young person. Naturally, a medical practitioner who suspects abuse or neglect must report the same to the relevant authorities.

6.94 Encouraging pregnant young women to access pre-natal care is vital for the health of both the mother and the child.¹⁸⁹ Dispensing with the requirement for consent from a parent or substitute decision maker will make it easier, particularly for young homeless pregnant girls to access pregnancy-related health care.

6.95 The same is true for access to treatment for drug and substance abuse, and for mental health issues. The various studies on the state of health of our young people uniformly show that young people commonly present with two or more health problems. In order to deal effectively with these complex co-morbidity factors, experts in adolescent health advocate a youth-focused and holistic approach to treatment. Where young people have positive and supportive relationships with their parents, health outcomes are likely to be significantly improved. Sadly, however, not all young people enjoy supportive family relationships. In such cases, the value of compulsorily involving the young person’s parents is negligible, and possibly detrimental.¹⁹⁰

6.96 With the exception of termination of pregnancy – which raises significant moral and ethical issues, more appropriately warranting the consideration of Parliament than of a Law Reform Commission, especially within the confines of a reference such as this – there is a compelling argument that in some situations, young people should have ready access to medical treatment, even though they are not legally competent to consent, where that treatment is necessary and promotes their health and well-being, but where they will not seek treatment if it means that their parents will be informed. The treatment must, broadly, be in the best interests of the young person and they must not object to it.

6.97 Section 37(2) of the Guardianship Act 1987 (NSW) permits minor treatment to be provided without a valid consent where:

(a) there is no person responsible for the patient, or

(b) there is such a person but that person either cannot be contacted or is unable or unwilling to make a decision concerning a request for that person’s consent to the carrying out of the treatment.

• he or she certifies in writing that the treatment is necessary and is the form of treatment that will most successfully promote the patient’s health and well-being; and
• the patient does not object.

6.99 One possible way of implementing the view in para 6.96 that young people should be able to access medical treatment without consent would be to provide that “treatment” for the purposes of the recommendation should be “minor treatment” as defined from time to time in the guardianship legislation. However, the classification of treatments into categories such as “special”, “major” or “minor” is necessarily dependent on the purposes of the particular legislation in which they are used. It is, for example, understandable that termination of pregnancy should be classified as a special treatment (requiring the approval of the Guardianship Tribunal) in the case of a disabled 17-year old woman who is subject to the guardianship legislation. Just as it is understandable that such approval should not be required where the 17-year old woman is not disabled and is Gillick-competent; or if not Gillick-competent, where her parents are prepared to consent or refuse consent.

6.100 In Chapter 8, the Commission recommends that a panel of medical and other experts should identify the special treatments that are to be prescribed for the purposes of the legislation.¹⁹⁵ Our view is that such a panel should draw up a list of treatments that would be included in a category of “necessary” treatment that can be provided without consent for the purposes of Recommendation 13.

6.101 To limit any potential for abuse of the provision, the Commission recommends that only medical, nurse, midwife and dental practitioners be able to provide treatment to a young person without consent. We have included nurse and midwife practitioners to allow for the situation where access to general practitioners is difficult, as it may be in rural and remote areas. Nurse and midwife practitioners are registered and have undergone additional education and training at an advanced level, and are subject to guidelines limiting the scope of their practice. Working autonomously in an advanced and extended clinical role, but in collaboration with other health professionals as part of a multidisciplinary team, such practitioners may perform some of the functions traditionally performed by a medical practitioner, such as prescribing some medications, ordering diagnostic tests and making referrals when operating within approved guidelines. Nurse and midwife practitioners address workforce supply issues and thus improve access to health services for young people. They practise in areas where it is difficult to attract adequate numbers of general practitioners, including rural and remote areas.¹⁹⁶

Recommendation 13

The legislation should provide that a medical, nurse, midwife or dental practitioner may provide certain treatment to a young person without consent where, in the opinion of the medical, nurse, midwife or dental practitioner:
• the treatment is necessary; and
• the form of treatment will most successfully promote the young person’s health and well-being; and
• the young person does not object to the treatment.
Regulations should specify the treatment that practitioners can provide without consent pursuant to this recommendation.

1. See Chapter 7.

2. See Chapter 4.

3. Family Law Act 1975 (Cth) s 4.

4. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 3.

5. See Recommendation 3.

6. Family Law Reform Act 1995 (Cth) replaced the old concepts of custody and guardianship with “parental responsibility”.

7. Family Law Act 1975 (Cth) s 61B, s 61C(1).

8. Family Law Act 1975 (Cth) s 61B.

9. Family Law Act 1975 (Cth) s 61C(2). See also Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218.

10. Family Law Act 1975 (Cth) s 61C(3).

11. Family Law Act 1975 (Cth) s 63C.

12. Family Law Act 1975 (Cth) s 65C.

13. Family Law Act 1975 (Cth) s 61D.

14. Family Law Act 1975 (Cth) s 64B.

15. Family Law Act 1975 (Cth) s 64B(2).

16. Family Law Act 1975 (Cth) s 64C.

17. Grandparent families are those in which grandparents are raising their grandchildren, either as a result of formal arrangements or informal arrangements. Grandparents usually take on the role of primary carers of their grandchildren when the parents are no longer able to fulfil their parental responsibilities often because of substance abuse, the death of one or both parents, mental or physical illness, or because the child requires a more protective environment: Australian Institute of Health and Welfare, Australia’s Welfare 2007 (Cat. no. AUS 93, Canberra), 23.

18. Australian Bureau of Statistics, Family Characteristics, Australia, June 2003 (Cat. no. 4442.0, Canberra), 40.

19. Family Law Act 1975 (Cth) s 65AA and s 60CA. Section 60CC sets out two primary considerations the court is to take into account, namely, the desirability of the child having a meaningful relationship with both parents, and the need to protect the child from harm as a result of abuse, neglect or family violence. The court is also directed to take into account a number of additional considerations including, but not limited to, the views of the child, the nature of the relationship between the child and the parents or another person and the capacity of the parent or another person to provide for the needs of the child. Sections 60CB to 60CG of the Family Law Act 1975 (Cth) relate to how the Court is to determine the best interests of the child.

20. Family Law Act 1975 (Cth) s 61DA. The presumption is rebuttable by evidence that equal shared parental responsibility would not be in the best interests of the child: s 61DA(4).

21. Family Law Act 1975 (Cth) s 64B (2)(d).

22. Family Law Act 1975 (Cth) s 65DAC.

23. Other matters include, but are not limited to, a child’s education, religious and cultural upbringing, name and living arrangements.

24. NSW Law Reform Commission, Minors’ Consent to Medical Treatment, Issues Paper 24 (2004) (“IP 24”), [4.2]-[4.3] and Issue 4.2.

25. In Re R (A Minor) (Wardship: Consent to Treatment) [1992] 1 FLR 190, 196 (Lord Donaldson of Lymington MR).

26. Goode v Goode [2006] FamCA 1346, [39] (Bryant CJ, Finn and Boland JJ).

27. R Chisholm, “Making it Work: the Family Law Amendment (Shared Parental Responsibility) Act 2006” (2007) 21 Australian Journal of Family Law 143, 161.

28. See, for example, Australian Dental Association (NSW Branch), Submission, 1.

29. Family Law Act 1975 (Cth) s 65DAC(4).

30. Family Law Act 1975 (Cth) Division 13A of Part VII deals with contraventions of parenting orders.

31. Dr S Siedlecky, Submission, 9; National Children’s and Youth Law Centre, Submission, 13.

32. Health Care Complaints Commission, Consultation.

33. Re C (A Child) (Immunisation: Parental Rights) [2003] EWCA Civ 1148 (Thorpe and Sedley LJJ, Evans J).

34. Re C & F (Children) 2003 EWHC1376 (Fam) (Sumner J).

35. Re C (A Child) (Immunisation: Parental Rights) [2003] EWCA Civ 1148, [17].

36. Re S (Children) (Specific Issue: Circumcision) [2005] 1 FLR 236. See also Re J (A Minor) (Prohibited Steps Order: Circumcision) [2000] 1 FLR 571.

37. Family Law Act 1975 (Cth) s 67ZC; Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218 affirmed in P v P (1994) 181 CLR 583 at 598. See also para 4.51.

38. See para 4.47.

39. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 113(1).

40. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 113(2).

41. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 24, s 26.

42. New South Wales Department of Health, Centre for Epidemiology and Research. “New South Wales Mothers and Babies 2003” (2004) 15 (s-5) NSW Public Health Bulletin. This was a decrease from 4099 births in 1999.

43. See, for example, the advice of the Medical Practitioners Board of Victoria that “an unmarried young person who is a parent should be assessed for competency like any other young person”: Medical Practitioners Board of Victoria, Consent for Treatment and Confidentiality in Young People (2004), 7.

44. See, for example, Married Persons (Equality of Status) Act 1996 (NSW) s 4(2). Compare Human Tissue Act 1983 (NSW) s 4: “child means a person who has not attained the age of 18 years and who is not married”.

45. Dr S Towns, Department of Adolescent Medicine, and Dr M Kang, Department of General Practice, Children’s Hospital at Westmead, Consultation. See also Queensland Law Reform Commission, Consent to Health Care of Young People, Report 51 (1996) vol 2, 327.

46. Doctors Reform Society, Submission, 5; Shopfront Youth Legal Centre, Submission, 11.

47. See, for example, Law Reform Commission of Saskatchewan, Proposals for a Consent of Minors to Health Care Act, Report (1980), 13; Queensland Law Reform Commission, Consent to Health Care of Young People, Report 51 (1996) vol 2, 328.

48. See, for example, Florida Statutes 2005 §743.065(2) (“unwed minor mother” can consent to healthcare of her child); Alaska Statutes Title 25 Ch 20 §25 (a minor who is a parent can consent to healthcare for self and for child); Montana Code Annotated 2005 §41-1-402 (a minor who is a parent can consent to healthcare for self and for child); University of Alberta, Institute of Law Research and Reform, Consent of Minors to Health Care, Report 19 (1975), 22-23 (a minor who is a mother should be able to consent to healthcare for self and for child).

49. See Care of Children Act 2004 (NZ) s 8.

50. Section 36(1)(b) expressly provides that the consent or refusal of a young person aged 16 and over has effect as if that young person were of full age, to medical, surgical or dental treatment or procedure, including a blood transfusion, to be carried out on the young person for the young person’s benefit.

51. See para 4.7-4.25.

52. See para 6.6–6.11.

53. A guardianship order may only be made under the legislation in respect of a person who is over 16 years of age: Guardianship Act 1987 (NSW) s 15(1)(a).

54. Guardianship Act 1987 (NSW) Pt 5, esp s 33A.

55. At 30 June 2006, there were 6.2 children and young people per every 1000 aged 0–17 years in some form of-out-of home care in NSW, compared to 3.4 per 1000 young people aged 0-17 years in 1997. In the same period, there was a much higher incidence of Indigenous children and young people in out-of-home care (44.7 per every 1000): Australian Institute of Health and Welfare, Child Protection in Australia 2005-2006, Child Welfare Series Cat no 40 (2007), 55-56.

56. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 135.

57. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 157.

58. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 177(2).

59. See para 6.21-6.28.

60. C Chamberlain and D MacKenzie, Australian Census Analytic Program: Counting the Homeless 2001, Australian Bureau of Statistics, Cat no 2050.0 (2003). See also National Youth Commission, Australia’s Homeless Youth: A Report of the National Youth Commission Inquiry into Youth Homelessness (2008) (“National Youth Commission Report”) which finds that the number of homeless youth has doubled since the first inquiry into youth homelessness in 1989 by Brian Burdekin. Recent 2006 Census figures (Australian Bureau of Statistics Report forthcoming) show that the number of homeless teenagers has dropped from 26,100 in 2001 to just under 21,000, in part due to early intervention programs introduced since the Burdekin Inquiry: National Youth Commission Report, 63.

61. C Chamberlain and D MacKenzie, Australian Census Analytic Program: Counting the Homeless 2001, Australian Bureau of Statistics, Cat no 2050.0 (2003).

62. National Youth Commission Report, Ch 17 explores the link between homelessness and health issues. See also Ch 10 on mental health issues affecting homeless youth.

63. National Youth Commission Report, [17.34]-[17.38].

64. N Milburn, M J Rotheram-Borus, E Rice, S Mallett and D Rosenthal, “Cross-national variations in behavioural profiles among homeless youth” (2006) 37 American Journal of Community Psychology 63, 67 cited in Mission Australia, Homeless Young Australians: Issues and Responses Snapshot 2007. See also National Youth Commission Report.

65. National Youth Commission Report, [17.14]. See also N Milburn, M J Rotheram-Borus, E Rice, S Mallett and D Rosenthal, “Cross-national variations in behavioural profiles among homeless youth” (2006) 37 American Journal of Community Psychology 63, 66; M Kang, D Bernard, M Booth, S Quine, G Alperstein, T Usherwood and D Bennett, “Access to primary health care for Australian young people: service provider perspectives” (2003) 53 British Journal of General Practice 947.

66. Dr S Siedlecky, Submission, 16.

67. See, for example, Children (Detention Centres) Act 1987 (NSW) s 28B.

68. NSW, Department of Juvenile Justice, Annual Report 2007, 45.

69. NSW, Department of Juvenile Justice, 2003 NSW Young People in Custody Health Survey: Key Findings Report (NSW Department of Juvenile Justice, 2003); Robyn Rosina, NSW Justice Health, Paper presented at Public Forum on Minors’ Consent to Medical Treatment, Parliament House, Sydney, 20 November 2006.

70. D T Kenny, P Nelson, T Butler, C Lennings, M Allerton and U Champion, NSW Young People on Community Orders Health Survey 2003-2006: Key Findings Report (University of Sydney, 2006), 20-23.

71. D T Kenny, P Nelson, T Butler, C Lennings, M Allerton and U Champion, NSW Young People on Community Orders Health Survey 2003-2006: Key Findings Report (University of Sydney, 2006), 27.

72. Health services to detainees are provided by the NSW Justice Health Service through clinics at each juvenile detention centre. Justice Health is a statutory health corporation under the Health Services Act 1997 (NSW).

73. NSW, Department of Juvenile Justice, 2003 NSW Young People in Custody Health Survey: Key Findings Report (NSW Department of Juvenile Justice, 2003), 13; see also D T Kenny, P Nelson, T Butler, C Lennings, M Allerton and U Champion, NSW Young People on Community Orders Health Survey 2003-2006: Key Findings Report (University of Sydney, 2006), 11.

74. Children (Detention Centres) Act 1987 (NSW) s 14(a).

75. Children (Detention Centres) Act 1987 (NSW) s 27(1). See also Crimes (Detention Centres) Regulation 2005 (NSW) reg 8(1), (3) and (4).

76. Children (Detention Centres) Act 1987 (NSW) s 27(2).

77. Children (Detention Centres) Act 1987 (NSW) s 27(3).

78. Crimes (Administration of Sentences) Act 1999 (NSW) s 73.

79. Children (Detention Centres) Regulation 2005 reg 8(2).

80. Guardianship Act 1987 (NSW) s 32.

81. See Guardianship Act 1987 (NSW) s 3 (“child”), 15(1)(a).

82. “Parental responsibility” has the meaning given under Children and Young Persons (Care and Protection Act) 1998 (NSW).

83. Guardianship Act 1987 (NSW) s 33A(2) and (3).

84. Guardianship Act 1987 (NSW) s 33A(4).

85. Guardianship Act 1987 (NSW) s 3D.

86. Guardianship Act 1987 (NSW) s 3D(2).

87. Guardianship Act 1987 (NSW) s 3E.

88. Guardianship Act 1987 (NSW) s 33A(5).

89. Minor treatment is defined as “treatment that is not special treatment, major treatment or treatment in the course of a clinical trial” Guardianship Act 1987 (NSW) s 33. See further para 6.97.

90. Major treatment is defined as treatment, other than special medical treatment or treatment associated with clinical trials that is declared to be major treatment in the Regulations: Guardianship Act 1987 (NSW) s 33. See para 6.97.

91. Guardianship Act 1987 (NSW) Pt 5 Div 4. For special medical treatment, see Chapter 8.

92. Guardianship Act 1987 (NSW) s 37.

93. Guardianship Act 1987 (NSW) Pt 5 Div 4.

94. Mental Health Act 2007 (NSW) s 3.

95. Mental Health Act 2007 (NSW) s 75.

96. Mental Health Act 2007 (NSW) s 26.

97. “Child” is not defined for the purposes of the Act generally or in Chapter 4 of the Act which deals with “Care and Treatment”. However, it seems to be used to refer to persons under 16 years of age: consider Mental Health Act 2007 (NSW) s 6 (dealing with voluntary admission of children).

98. Mental Health Act 2007 (NSW) s 71(2).

99. Mental Health Act 2007 (NSW) s 72(1) and (2).

100. Mental Health Act 2007 (NSW) s 72(3).

101. Guardian is defined as having “all duties, powers, rights, and responsibilities that a parent of the child has in relation to the upbringing of the child”. Care of Children Act 2004 (NZ) s 15.

102. Care of Children Act 2004 (NZ) s 36(3).

103. NSW Law Reform Commission, Minors’ Consent to Medical Treatment, Issues Paper 24 (2004), Issue 4.3.

104. National Children’s and Youth Law Centre, Submission, 14.

105. Dr S Siedlecky, Submission, 10.

106. See chapter 8.

107. Shopfront Youth Legal Centre, Submission, 7.

108. Adoption Act 2000 (NSW) s 32, 33.

109. Children and Young Persons (Care and Protection) Act 1998 (NSW) Part 2.

110. Mental Health Act 2007 (NSW) s 68(g).

111. NSW Commission For Children and Young People, Submission, [10.4]; Shopfront Legal Centre, Submission, 7.

112. Shopfront Youth Legal Centre, Submission, 7; Dr S Siedlecky, Submission, 10; National Children’s and Youth Law Centre, Submission, 14.

113. Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 4 (“parent” includes a person in loco parentis).

114 NSW Guardianship Tribunal, Consultation.

115. See Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175.

116. Guardianship Act 1987 (NSW) Pt 5 Div 4.

117. Guardianship Act 1987 (NSW) s 36(1)(a).

118. See Recommendation 16.

119. Guardianship Act 1987 (NSW) s 4.

120. Recommendation 2.

121. For example, Children (Detention Centres) Act 1987 (NSW) s 27(2), inserted by Children (Detention Centres) Amendment Act 2006 (NSW). This provision mirrors those that apply to the adult prison population in the Crimes (Administration of Sentences) Act 1999 (NSW) s 73, inserted by Crimes (Administration of Sentences) Amendment Act 2000 (NSW) Sch 1[12].

122. Dr S Siedlecky, Submission, 16; Doctors Reform Society, Submission, 5.

123. See para 7.1-7.3.

124. IP 24, [3.44].

125. See P Aguis, S Dyson, A Mitchell, M Pitts and A Smith, Secondary Students and Sexual Health 2002: Results of the 3rd National Survey of Australian Secondary Students, HIV/AIDS and Sexual Health, Australian Research Centre in Sex, Health & Society, La Trobe University, Melbourne (2003) (“Secondary Students and Sexual Health Survey 2002”), 58-60. For the first time, the survey included students in Catholic and Independent schools as well as Government schools, so was more truly national. Previous surveys were held in 1992 and 1997. See also Joan Sauers, Sex Lives of Australian Teenagers (Sydney, 2007), 465 which surveyed 300 boys and girls aged 13 – 19 over a period of 4 months, and found that most teenagers were found to be having some kind of sexual experience.

126. Secondary Students and Sexual Health Survey 2002, 34 - 35.

127. Secondary Students and Sexual Health Survey 2002, 59.

128. Secondary Students and Sexual Health Survey 2002, 52.

129. Secondary Students and Sexual Health Survey 2002, 86 - 88.

130. Secondary Students and Sexual Health Survey 2002, 59, 61.

131. T P 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, 193. See too, M Kang, D Bernard, M Booth, S Quine, G Alperstein, T Usherwood and D Bennett, “Access to primary health care for Australian young people: service provider perspectives (2003) 53 British Journal of General Practice 947, 951; and Secondary Students and Sexual Health Survey 2002, 82.

132. T P 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. See further para 4.60.

133. Secondary Students and Sexual Health Survey 2002, 44.

134. J Lindsay, A Smith and D Rosenthal, “Conflicting advice? Australian Adolescents’ Use of Condoms or the Pill” (1999) 31 Family Planning Perspective 190.

135. Secondary Students and Sexual Health Survey 2002, 51-52.

136. Dr S Siedlecky, Submission, 7; Doctors Reform Society, Submission, 3.

137. See, for example, R Klein, Implanon: Just Slip it in? (Online Opinion, posted 6 May 2008) at http://www.onlineopinion.com.au/view.asp?

article=7331&page=0 (at 8 May 2008).

139. Secondary Students and Sexual Health Survey 2002, 1. Six per cent of girls surveyed had had sex that resulted in pregnancy. See further para 6.70-6.72 and para 6.79-6.80.

140. See para 6.64.

141 Secondary Students and Sexual Health Survey 2002, 15 – 22

142. Australian Department of Health and Ageing, National sexually transmissible infections strategy, 2005 – 2008, (2005), 7 - 8. See also Australian Research Centre in Sex, Health & Society, Annual Report (2006) at 15.

143. Public Health Act 1991 (NSW) Division 3 s 14-16.

144. Public Health Act 1991 (NSW) s 13.

145. Commission for Children and Young People, Submission, [5.2]; National Children’s and Youth Law Centre, Submission, 12-13; and Doctors Reform Society, Submission, 2 and 6.

146. V White and J Hayman, Australian Secondary Students’ Use of Alcohol in 2005 (Cancer Council of Victoria, June 2006) based on data collected from the 2005 Australian Secondary Students’ Alcohol and Drug Survey (“ASSADS”) of 21,805 high school students from 375 schools across Australia aged between 12-17. See also, J Payne and J Prichard, Alcohol, Drugs and Crime: A Study of Juveniles in Detention 2005, Australian Institute of Criminology, Research and Public Policy Series no 67 (2005), 14-16; and Secondary Students and Sexual Health Survey, 77.

147. V White and J Hayman, Australian Secondary Students’ Use of Over-the Counter and Illicit Substances in 2005, Cancer Council of Victoria (2006).

148. See for example, N Wallace, ‘Illicit drug use, drinking starting at 12’, The Sydney Morning Herald, 18 December 2007.

149. J Payne and J Prichard, Alcohol, Drugs and Crime: A Study of Juveniles in Detention 2005, Australian Institute of Criminology, Research and Public Policy Series no 67 (2005), 14-16.

150. J Payne and J Prichard, Alcohol, Drugs and Crime: A Study of Juveniles in Detention 2005, Australian Institute of Criminology, Research and Public Policy Series no 67 (2005), 30; S Mallett, J Edwards, D Keys, P Myers, D Rosenthal, Disrupting Stereotypes: Young people, drug use & homelessness (2003).

151. J Payne and J Prichard, Alcohol, Drugs and Crime: A Study of Juveniles in Detention 2005, Australian Institute of Criminology, Research and Public Policy Series no 67 (2005), 13.

152. J Payne and J Prichard, Alcohol, Drugs and Crime: A Study of Juveniles in Detention 2005, Australian Institute of Criminology, Research and Public Policy Series no 67 (2005), 36.

153. MG Sawyer (et al), Child and Adolescent Component of the National Survey of Mental Health and Wellbeing (Commonwealth Department of Health and Aged Care, 2000), 10-12 and 35.

154. MG Sawyer (et al), Child and Adolescent Component of the National Survey of Mental Health and Wellbeing (Commonwealth Department of Health and Aged Care, 2000), 10-12.

155. NSW Centre for the Advancement of Adolescent Health, Online GP Resource Kit, Section 1 Understanding Adolescents and their Health Needs at p12 available at http://www.caah.chw.edu.au/resources/gp-section1.pdf (at 19 May 2008).

156. S Dyson, A Mitchell, A Smith, G Dowsett, M Pitts, L Hillier, Don’t Ask, Don’t Tell (2003), 11.

157. See para 6.33.

158. MG Sawyer (et al), Child and Adolescent Component of the National Survey of Mental Health and Wellbeing (Commonwealth Department of Health and Aged Care, 2000), 38-40.

159. D De Leo and T Heller, “Who are the kids who self-harm? An Australian self-report survey” (2004) 181(3) Medical Journal of Australia 140. See too Australian Institute of Health and Welfare, Young Australians: their health and wellbeing 2007 (2007).

160. MG Sawyer (et al), Child and Adolescent Component of the National Survey of Mental Health and Wellbeing (Commonwealth Department of Health and Aged Care, 2000), 33.

161. MG Sawyer (et al), Child and Adolescent Component of the National Survey of Mental Health and Wellbeing (Commonwealth Department of Health and Aged Care, 2000), 43

162. Australian Institute of Health and Welfare, Australia’s Health 2008 (Cat no AUS99, Canberra), 280.

163. Australian Bureau of Statistics, Birth Rates Australia 2004 (Cat 3301.0, Canberra 2005). The 2005 rate is 4.3 times higher for young indigenous women aged 15-19 years. See also S Singh and J E Darroch, “Adolescent pregnancy and childbearing: levels and trends in developed countries” (2000) 32 Family Planning Perspectives 14.

164. SR Skinner and M Hickey, “Current priorities for adolescent sexual and reproductive health in Australia” (2003) 179 Medical Journal of Australia 158,161 citing a league table of teenage births and abortions in rich nations by UNICEF, Innocenti Report Card no 3 (2001) Innocenti Research Centre, Florence, Italy.

165. NSW Department of Health, Population Health Division. The health of the people of New South Wales - Report of the Chief Health Officer, (2006) available at http://www.health.nsw.gov.au/public-health/chorep/ses/

ses_lomidhiteenmum.htm (accessed 23 July 2008). See also para 6.21.

167. National Youth Commission Report, [17.18]-[17.21].

168. See para 6.32-6.34.

169. J Quinliven, “Teenage Pregnancy” (2006) 8 (2) Obstetrics and Gynaecology (RANZOG) 25.

170. This is due in part to the prevalence of sex education in schools, the availability and use of contraceptives, and the greater inclination of young women to delay parenthood.

171. These figures only relate to abortions performed under Medicare. They do not include abortions performed in public hospitals. There is no nationally consistent data on abortion rates: see A Pratt, A Biggs and L Buckmaster, “How many abortions are there in Australia? A discussion of abortion statistics, their limitations, and options for improved statistical collection”, Parliamentary Library of Australia, Research Brief No. 9 (2004–05).

172. R v Wald (1971) 3 DCR (NSW) 25 per Levine J (NSW Supreme Court). See also Crimes Act 1900 (NSW) s 82.

173. Guardianship Act 1987 (NSW) s 35. See also Chapter 8.

174. C Read, Sex and the Law: A guide for health and community workers in NSW, FPA Health (2006), 86.

175. Care of Children Act 2004 (NZ) s 38. This Act repealed and replaces the Guardianship Act 1968 which had originally contained an exception, in the case of abortion, to the general rule that a young person under 16 cannot consent to a medical procedure and that such consent must be obtained from a parent or guardian: Guardianship Act 1968 s 25A. Notwithstanding this, s 38 of the 2004 Act generated much debate; see New Zealand Parliament, Hansard, Third Reading, House of Representatives 9 November 2004 available at http://www.parliament.nz/en-NZ/PB/Debates/Debates/4/8/3/47HansD_20041109_00000802-Care-of-Children-Bill-Status-of-Children.htm.

176. For a brief overview of US State laws on parental involvement in abortion decisions by minors, see Guttmacher Institute, Parental Involvement in Minors’ Abortions, State Policies in Brief (2008) «http://www.guttmacher.org/statecenter/spibs/spib_PIMA.pdf». See also Health Act 1911 (WA) that similarly requires parents to be notified where a dependant minor (defined as a girl aged under 16 years who is being supported by a parent) seeks a termination unless the young girl obtains an order from the Children’s Court that her parents not be notified: s 334.

177. See, for example, E Musser, “Mandating parental involvement in minors’ abortions” (1998) 13 Berkeley Women’s Law Journal 282, 286.

178. E Musser, “Mandating parental involvement in minors’ abortions” (1998) 13 Berkeley Women’s Law Journal 282, 288.

179. National Children’s and Youth Law Centre, Submission, 12-13.

180. Doctors’ Reform Society, Submission, 4.

181. National Children’s and Youth Law Centre, Submission, 12; Dr S Seidlecky, Submission, 9; Doctors Reform Society, Submission, 4.

182. M Booth, D Bernard, S Quine, M Kang, T Usherwood, G Alperstein and D Bennett, “Access to health care among Australian adolescents: young people’s perspectives and their sociodemographic distribution” (2004) 34 Journal of Adolescent Health 97.

183. M Booth, D Bernard, S Quine, M Kang, T Usherwood, G Alperstein and D Bennett, “Access to health care among Australian adolescents: young people’s perspectives and their sociodemographic distribution” (2004) 34 Journal of Adolescent Health 97.

184. S Quine, D Bernard, M Booth, M Kang, T Usherwood, G Alperstein and D Bennett, “Health and access issues among Australian adolescents: a rural-urban comparison” (2003) 245 Rural and Remote Health 3 http://www.rrh.org.au/publishedarticles/article_print_245.pdf (at 24 July 2008).

185. S Quine, D Bernard, M Booth, M Kang, T Usherwood, G Alperstein and D Bennett, “Health and access issues among Australian adolescents: a rural-urban comparison” (2003) 245 Rural and Remote Health 3 http://www.rrh.org.au/publishedarticles/article_print_245.pdf (at 24 July 2008).

186. L Sanci, S Sawyer, M Kang, D Haller and G Patton, “Confidential health care for adolescents: reconciling clinical evidence with family values” (2005) 183 Medical Journal of Australia 410.

187. Doctors Reform Society, Submission, 6; Commission for Children and Young People, Submission, 15-16; Redfern Legal Centre, Submission, 3; National Children’s and Youth Law Centre, Submission, 12; Youth Action Policy Association, Submission, 1.

188. See, for example, NSW Commission for Children & Young People, Submission, [5.1]-[5.2], Redfern Legal Centre, Submission, 8.

189. National Children’s and Youth Law Centre, Submission, 12; Dr S Siedlecky, Submission, 9.

190. L Sanci, S Sawyer, M Kang, D Haller and G Patton, “Confidential health care for adolescents: reconciling clinical evidence with family values” (2005) 183 Medical Journal of Australia 410, 413.

191. Guardianship Act 1987 (NSW) s 37 (3).

192. Guardianship Act 1987 (NSW) s 33(1) (“minor treatment”).

193. Guardianship Regulation 2005 (NSW) cl 8(b).

194. See Guardianship Regulation 2005 (NSW) cl 10(a), (b).

195. See Recommendation 17.

196. See Australian Institute of Health and Welfare, Nursing and Midwifery Labour Force 2005 (2008), 2.