Updates and background for this project (Digest)
7. Emergencies
CONSENT AND EMERGENCY HEALTH CARE
7.1 Section 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) allows medical practitioners and dentists to treat all children1 and young persons2 under 18 years of age without the consent of the child or young person or the consent of the child or young person’s parents if, in the medical practitioner’s or dentist’s opinion, the medical or dental treatment is necessary as a matter of urgency matter to:
- save the child’s or young person’s life; or
- prevent serious damage to the child’s or young person’s health.3
7.2 Section 174 treats such emergency action by a medical practitioner or dentist as having been carried out with the relevant person’s consent.4 However, the section does not exclude the medical practitioner or dentist from liability for negligence in giving the medical or dental treatment.5
7.3 Section 174 reflects the position relating to emergency medical treatment of young people at common law.6 It appears to render irrelevant in New South Wales questions as to the content of the common law emergency medical treatment exception to the requirement for consent to the application of force to a person, at least where that person is under 18 years.7
7.4 The principal issues arising in the interpretation of section 174 are:
- What is “emergency” treatment?
- Should the availability of such treatment depend solely on the opinion of the medical practitioner or dentist?
The meaning of “emergency”
7.5 Section 174 of the Children and Young Person’s (Care and Protection) Act 1998 (NSW) establishes that “emergency treatment” is treatment that is:
- required as a matter of urgency; and
- is necessary to save the child or young person’s life or prevent serious damage to his or her health. 8
7.6 It is the combination of these two factors that distinguishes “emergency” treatment from the “necessary” treatment that the Commission has identified in Recommendation 13. Both types of treatment do, however, share the characteristic that they are available without consent.
7.7 However, the Commission considers that the “emergency” treatment exception to the requirement of consent under our proposed legislation should continue to apply only to medical or dental treatment carried out by a medical practitioner or dental practitioner.
Urgency
7.8 What is a “matter of urgency” obviously varies with the circumstances of the particular case. In Re Elm, Justice Brereton held that specified treatment at birth of a baby (who was still in the womb but about to born to a woman who was HIV positive) in order to reduce the risk of the baby contracting HIV at birth was “urgent.”9 The necessity for that treatment to continue for four weeks after birth did not affect this conclusion. His Honour said:10
“Carrying out” medical treatment, for the purpose of s 174, involves its continuation as well as its institution, at least so long as its continuation remains necessary to save life or prevent serious damage to health.”
Necessary to save life or prevent serious damage to health
7.9 The treatment must be necessary for one of the two purposes identified in the legislation. In this respect the legislation is similar to that made for emergency treatment in comparable legislative provisions. We have, however, examined two possible variations.
7.10 First, legislation in South Australia defines emergency treatment as “an imminent risk to life or health”.11 On its face, this makes the test less stringent than the test in NSW, especially as the risk to health need not be “serious”. We note, however, that the South Australian legislation has the added protection that the opinion of the medical practitioner must generally be supported by a second opinion, unless it is impractical to obtain one in the circumstances.12 As this must often be the case, we find no argument in support of restating the law of New South Wales in this way.
7.11 Secondly, emergency medical treatment in the Guardianship Act 1987 (NSW) can, in addition to the two purposes mentioned here, be administered “to prevent the patient from suffering or continuing to suffer significant pain or distress”.13 This purpose is not, however, allowed to define the circumstances in which “special” medical treatment is available. We see merit in allowing medical practitioners to give emergency treatment in such circumstances, except in the case of special medical treatment.
The opinion of the medical practitioner or dentist
7.12 It is the opinion of the medical practitioner or dentist that enlivens section 174, and that is decisive for the purposes of the section.14 Where the child or young person lacks competency, this means that the opinion of the practitioner can displace the consent of a competent parent, as was the case in Re Elm.
7.13 In Recommendation 7 the Commission preserves the right of a parent to consent to the medical treatment of a competent young person who is temporarily unable (for example, through loss of consciousness) to consent to medical treatment. If the situation is an emergency, the decision of the parent on the treatment that should be given to the young person would, however, be overridden by that of the doctor.
7.14 The practical importance of allowing the doctor to override parents’ or young person’s views in emergency cases is likely to arise in “refusal” cases, that is cases in which the emergency dictates that particular medical treatment should be given to a young person but the parents will not consent to that treatment. An example is where parents who are Jehovah Witnesses refuse on religious grounds to consent to the blood transfusion of their unconscious child even though that refusal, if followed through, would result in the death of their child. Moreover, it makes no difference if the situation is one of emergency and the young person is conscious and also refuses the treatment on religious grounds. The Commission’s general test of competence does not distinguish between “consent” and “refusal of consent”, and we see no reason why that distinction should be introduced here.15
7.15 Submissions to Issues Paper 24 generally supported this position. They did not believe that a parent of a child or a young person should be able to refuse emergency treatment where it is necessary to preserve the child or young person’s life or to prevent significant long-term harm.16 A couple of submissions suggested a legal appeal mechanism if both the young person and parent(s) refused emergency treatment.17 However the Doctors Reform Society noted “[t]here is an implied consent in emergency treatment…”.18
7.16 Some submissions commented on refusal of emergency care in the narrower context of palliative care. One submission19 could envisage the situation where a minor had a life-threatening illness and was continually being “saved” by emergency treatment, without the reasonable prospect of recovering from the illness or of having any appreciable quality of life. In such a case, it could be appropriate for the young person or parent of the child to apply for a court or tribunal order authorising them to refuse consent to any such treatment in the future. Another submission20 also supported the idea of a formal procedure to be undertaken by a young person or his or her parents through a statutory body to gain authorisation to refuse medical treatment.
7.17 In the Commission’s view, palliative care decisions should not be brought within the ambit of “emergency treatment”. Palliative care should be considered as part of how best to manage the on-going care and case management of a life-threatening, chronic illness. In this context, palliative care decisions should be left to an expression of wish by the young person and/or his or her parents as to how they would like the young person’s illness to be case managed.
The Commission’s conclusion
7.18 No submissions to Issues Paper 24 suggested any significant changes to the content, language or operation of section 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The submission of the NSW Commission for Children and Young People said that the language of section 174 provides “a clear legislative guide to practitioners and it is suggested that any new provision be drafted in a similar way to section 174.”21 However, the submission also noted that the present placement of section 174 within Chapter 9, Part 1 of the Children and Young Persons (Care and Protection) Ac 1998 (NSW), headed “Medical examination of children and young persons in need of care and protection” makes it unclear whether section 174 applies to all children and young persons, or only to those in need of care and protection. The NSW Commission for Children and Young People felt this should be clarified in the legislation.22 However, if our proposed legislation is enacted,23 it will, of course, be clear that the provisions on emergency treatment apply to all young persons below the age of 18 years.
7.19 Section 174 appears to operate effectively in allowing medical practitioners and registered dentists to treat children and young persons without their or their parents’ consent in emergency situations. The substance of s 174(1), (2), (4) should be incorporated in the new legislation recommended in this Report, subject to its expansion to allow the administration of emergency treatment to prevent the patient from suffering or continuing to suffer significant pain or distress (except in the case of special medical treatment). Section 174(3) is unnecessary and does not need to be included in the new legislation. Once the substance of s 174(1), (2), (4) has been incorporated into the proposed new legislation, it should be deleted from its present position in Part 1 of Chapter 9 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
Recommendation 14
The legislation should provide for emergency health care for all young persons to the same effect as s 174(1), (2), (4) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), and should additionally authorise the administration of emergency treatment to prevent the patient from suffering or continuing to suffer significant pain or distress (except in the case of special medical treatment).
Recommendation 15
For the purposes of Recommendation 14, “health care” means medical or dental treatment provided respectively by a medical practitioner registered under the Medical Practice Act 1992 (NSW) or by a dental practitioner registered under the Dental Practice Act 2001 (NSW) or treatment by any person pursuant to directions given in the course of the practice of, respectively, medicine or surgery or dentistry by a practitioner so registered.
SUSPECTED CHILD ABUSE
7.20 Wide statutory powers under the Children and Young Persons (Care and Protection) Act 1998 (NSW) are given to certain government authorities and courts to intervene in cases of suspected child abuse, including medical examinations of children without their or their parents’ consent. Issues Paper 24 drew attention to the two different approaches taken to such medical examinations under section 173 (Medical examination of children in need of care and protection) and section 53 (Making of [Children’s Court] assessment orders). 24
7.21 While the Commission is not examining children in care in this reference, we drew attention in Issues Paper 24 to the language of section 173 relating to the medical examination of children in need of care and protection, since it does not accord with the more participatory, inclusive approach to the general principles applicable to the interpretation and application of the legislation recommended in this report.25 and with section 10 of the Act which establishes the same principle.26
7.22 Submissions to Issues Paper 24 generally considered that in cases of suspected child abuse it is appropriate for a child to undergo a medical examination without his or her or parental consent.27 However, since a forced medical examination is distressing for a child, one submission cautioned that it is always preferable to obtain the child’s or parents’ consent before proceeding.28 Another submission observed that all attempts should be made to win the co-operation of the child. This submission also supported medical examinations under section 173 being aligned with the more consensual approach of section 53 to medical examinations of children.29
7.23 The Commission understands that section 173 is used primarily as an evidence gathering provision by the Department of Community Services and the police in emergency situations to protect children in high-risk family circumstances. Requiring a child’s consent to a medical examination in such circumstances might unintentionally put that child under extreme emotional pressure from other family members, and potentially place that child at great risk of further abuse. Consequently, in the delicate balance between the law establishing a more participatory role for children in need of care and protection and the need to prevent risk of further abuse, the latter must prevail.
7.24 For similar reasons, the Commission also considers that the ability of a child or young person of sufficient understanding to refuse to submit to a medical examination ordered by the Children’s Court under section 53(4) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) should be rebalanced. This could be simply achieved by moving section 53(4) into section 56(1). The effect would be to allow the Children’s Court to override a child or young person’s refusal to undergo a medical examination order, whereas presently it cannot. Instead, the Court would have to take the child or young person’s refusal into consideration when making any assessment order.
FOOTNOTES
1. “Child” is a person under 16 years: Children and Young Persons (Care and Protection) Act 1998 (NSW) s 3.
2. “Young person” is a person of 16 or 17 years: Children and Young Persons (Care and Protection) Act 1998 (NSW) s 3.
3. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 174(1),(2).
4. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 174(3).
5. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 174(4).
6. See Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218, 310 (McHugh J).
7. See also T Carney, “Regulation of treatment of severe anorexia nervosa: assessing the options” (2002) 11 Australian Health Law Bulletin 25, 27, n 17 and accompanying text.
8. Australian Dental Association (NSW Branch), Submission at 1 gives an example of emergency dental treatment, such as a minor presenting to a dentist with a tooth knocked out in an accident, or in acute pain and the parent is not contactable.
9. Re Elm (2006) 69 NSWLR 145, [12].
10. Re Elm (2006) 69 NSWLR 145, [12].
11. Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13(1)(b).
12. Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13(1)(b).
13. Guardianship Act 1987 (NSW) s 37(1)(c).
14. Specifically, the medical practitioner’s or dentist’s subjective opinion at the time of the emergency. This is inferred from a Court of Appeal decision in Birkett v Central Sydney Area Health Service – BC9605880 (Unreported, NSW Court of Appeal, Priestly, Clarke JJA and Abadee AJA, 18 November 1996) dismissing an appeal from a decision of Bryson J in which his Honour had discussed the nature of the medical practitioner’s opinion referred to in the predecessor of s 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), being s 20A(1) of the Children (Care and Protection) Act 1987 (NSW).
15. The legislation in South Australia makes the child’s health and well-being the paramount consideration where parents or guardians possess the ability to decide for the child in emergency situations: Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13(5).
16. For example, Shopfront Youth Legal Centre, Submission at 9.
17. Doctors Reform Society, Submission at 4; S Siedlecky, Submission.
18. Doctors Reform Society, Submission at 4.
19. Shopfront Youth Legal Centre, Submission at 9.
20. Doctors Reform Society, Submission at 4.
21. NSW Commission for Children and Young People, Submission at [7.2.3].
22. NSW Commission for Children and Young People, Submission at [7.2.2].
23. See Recommendation 1.
24. NSW Law Reform Commission, Minors’ Consent To Medical Treatment, Issues Paper 24 (2004) [5.31]-[5.36].
25. See Chapter 2 and Recommendation 2.
26. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 10 establishes the “principle of participation” to ensure that children and young persons are able to participate in decisions made under the Act with a significant impact on their lives.
27. Shopfront Youth Legal Centre, Submission at 9; NSW Commission for Children and Young People, Submission at [10.1.2]; S Siedlecky, Submission.
28. Shopfront Youth Legal Centre, Submission at 9.
29. S Siedlecky, Submission.
