Updates and background for this project (Digest)
8. Special medical treatment
8.1 In this report, we have discussed the involvement of young people, their parents and other caregivers in decisions about young people’s health care. So far, the focus of our discussion has been on the laws that determine when young people should have responsibility for such a decision and, where they do not have that responsibility, the people who should be able to make that decision on their behalf, namely a parent or another caregiver. We have noted that the requirement for consent is derived from the common law tradition that insists that a valid consent be given before physical contact with another person can lawfully be made. Health care involving physical contact exposes a practitioner to liability in trespass if a valid consent to that contact has not first been obtained, except in emergencies.1 At least in so far as it relates to young people, we have noted that the requirement for consent also serves a broader purpose beyond exculpating a practitioner from liability in trespass. It acts as an assertion of authority or responsibility for decisions concerning a young person’s care.
8.2 Normally, where young people are not competent to make a decision about health care, the law recognises their parents as having the authority to decide on their behalf. As we have seen, that authority is not limitless: at common law, the courts have an overarching supervisory power as part of their parens patriae jurisdiction, to protect a young person’s best interests. This allows them to intervene in a decision affecting a young person’s health care and act contrary to a parent’s wishes. In addition to this more general parens patriae power, legislation also empowers courts to act to protect young people’s best interests.
8.3 This chapter looks at another aspect of the limitation on parents’ authority to consent to health care for their children. Derived from the basic responsibility of the courts to protect the best interests of the child, the law has developed a narrow class of treatments which are considered to be of such a serious nature that they are beyond the scope of parental consent altogether. Instead, the law vests the authority to consent to these treatments in the courts or in the Guardianship Tribunal. These are seen to act as a form of procedural safeguard in protecting the best interests of the young person concerned.2 And so, a practitioner cannot provide a treatment in this class to a young person on the basis of a parent’s consent alone. He or she must obtain court or Tribunal authorisation.3
8.4 Treatments in this class, requiring authorisation from a court or tribunal, are sometimes called “special treatments” or “special medical treatments”, or sometimes “special cases”. There is not a single term of art for the treatments so designated. A commonly cited example of special medical treatment is sterilisation. In New South Wales, a young person, at least a person below the age of 16,4 cannot be sterilised without authorisation from the Family or Supreme Courts, or the Guardianship Tribunal, even if the young person and/or his or her parent consents to the sterilisation.
8.5 This chapter discusses the law on consent to special medical treatment. It includes recommendations for statutory provisions regulating the authorisation of this class of treatments, to be inserted into our proposed legislation dealing with consent to young people’s health care. The provisions which we recommend largely mirror existing provisions relating to special medical treatment in the Children and Young Persons (Care and Protection) Act 1998 (NSW), with some fine tuning to redress gaps in the current legislative scheme and overcome potential problems arising as a result of concurrent common law and statutory regimes.
8.6 Before taking a more detailed look at these recommendations, we begin by considering the current law in this area. As with the law on consent more generally, the current law on consent to special medical treatment is a mixture of common law and legislation. Uncertainties arise both within each regime and from the interaction of the two. The first part of this chapter examines the common law relating to special medical treatment, then the relevant legislation, before considering the ways in which these two interact. The second part discusses the changes to the law which we recommend, and the ways in which these recommendations differ from the current law.
COMMON LAW
Certain procedures are considered “special cases”
8.7 At common law, as we have already noted, a parent can generally consent to treatment for a young person who is not Gillick competent. However, in the leading case of Secretary, Department of Health and Community Services v JWB and SMB (“Marion’s case”),5 the High Court decided that it is outside the scope of parents’ power to consent on behalf of their children to certain procedures designated by the Court as “special cases”.6 At common law, the power to consent to these special cases instead rests with the courts.
8.8 There is no fixed list of procedures that constitute special treatment at common law. Marion’s case itself involved the proposed sterilisation of a girl with an intellectual disability. The Court considered whether the procedure constituted a special case so as to place it beyond the scope of parental authority to consent to,7 concluded that it did,8 and left open the possibility of there being other such procedures.9 It is worth emphasising here that a treatment that may otherwise be classified as a special case requiring court authorisation, if “required for medical and therapeutic reasons”, does not need the court’s consent to be carried out.10 An example of this is sterilisation that is a by-product of surgery carried out to treat a disease,11 such as a hysterectomy carried out in the process of treating certain forms of cancer. In this situation, assuming the young person was not competent, the authority to consent would normally lie with the parent.
8.9 While sterilisation features most commonly in the few reported cases on special medical treatment,12 other procedures which have been held at common law to constitute special cases include surgical gender reassignment,13 a bone marrow harvest from a healthy child for transplant to an adult relative,14 hormonal treatment,15 and even termination of pregnancy.16
Features of a procedure that are indicative of a special case
8.10 The High Court in Marion described sterilisation as a procedure involving surgery that is “invasive, irreversible and major”.17 But this description in itself does not provide a formula for predicting which procedures constitute special cases, as it could equally apply to, for example, an appendectomy and some cosmetic surgery,18 both of which, according to the High Court,19 fall within the ordinary scope of parental authority to consent.
8.11 On the other hand, the High Court has identified two features which are indicative of a procedure of such a serious nature as to necessitate court authorisation and therefore bring it within the class of special cases. These two features are:
Risk of making the wrong decision
8.12 The High Court regarded the following factors as contributing to this risk:
- The complexity of the question of consent. The question of what constitutes informed consent20 – whether on the part of the parents or of the child in question – is problematic. Even if there were a settled rule, its application would still be fraught with difficulty. For example, the Court expressed concern that some sterilisations in the past may have been performed too readily and the child’s capacity to consent and later, to care for a child, wrongly assessed. Doctors and others attempting to determine capacity may be affected by commonly held misconceptions about those with intellectual disabilities.
- Role of the medical profession. Absolute faith in the integrity of all practitioners cannot be assumed, while even those acting in good faith may have too limited a frame of reference in which to make correct assessments. Furthermore, a decision concerning a “special medical treatment” may in fact be not only a medical issue, but also a social and psychological one.
- Possible conflict of interests. A parent may have regard to interests additional to those of the child who is the patient. While these may be legitimate and relevant, they may also conflict with those of the child, whereas the court’s role is to ensure that the child’s interests prevail.
Potentially grave consequences
8.13 In Marion’s case the Court recognised the potentially serious social and psychological consequences flowing from the deprivation of the ability to reproduce and from the violation of the person, having been treated contrary to his or her wishes or best interests.21
LEGISLATION
8.14 The two relevant statutes in NSW are the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Guardianship Act 1987 (NSW).
Scope of legislation
8.15 Section 175(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) makes it an offence to carry out special medical treatment on a person under the age of 16 otherwise than in accordance with the section. Such treatment may be carried out if necessary as a matter of urgency in order to save the child’s life or prevent serious damage to health,22 or with authorised consent.23
8.16 Part 5 of the Guardianship Act 1987 (NSW) applies to a person above the age of 16 who is incapable of giving consent to medical treatment.24 Special treatment may be carried out if necessary as a matter of urgency to save the patient’s life or prevent serious damage to health, or with the consent of the Guardianship Tribunal.25
8.17 The combined effect of the two Acts is that no person under 16, regardless of competence, nor persons over 16 who are incapable of giving consent, can consent to a treatment specified as a special medical treatment, and it is outside the scope of parents’ or guardians’ power to consent on such a child’s behalf.
What treatments are covered
8.18 The two Acts are similar but not identical. They list a number of treatments, as follows, some (but not all) of which require authorisation from the Guardianship Tribunal:
- sterilisation of the type that might be thought of as “planned sterilisation” (in contrast with those cases where sterilisation is an unwanted consequence of life-saving treatment);26
- administration of a drug of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966 (NSW) for more than 10 days in any 30;27
- an experimental procedure that does not conform to the National Health and Medical Research Council’s National Statement on Ethical Conduct in Research Involving Humans;28
- a new treatment that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in the area;29
- administration of a psychotropic drug to a child in out-of-home care in order to control his or her behaviour;30
- administration of certain restricted substances for the purpose of affecting the central nervous system;31
- use of androgen reducing medication to control behaviour;32
- termination of pregnancy;33
- use of an aversive stimulus.34
8.19 Those treatments above that are listed in the Children and Young Persons (Care and Protection) Act 1998 (NSW) or Children and Young Persons (Care and Protection) Regulation 2000 (NSW) apply to all children under 16.35 Those that appear in the Guardianship Act 1987 (NSW) or Guardianship Regulation 2005 (NSW) apply to young persons above 16 who lack the capacity to give consent.36 This can give rise to apparent anomalies, explicable only by reference to the purposes of the Guardianship Act 1987 (NSW). For example, regarding termination of pregnancy, the parents of young persons who are not competent may give consent if the young person is under 16 but not if over this age.
SHOULD THERE BE A SPECIAL TREATMENTS REGIME?
Common law
8.20 In his dissenting judgment in Marion’s case, Justice Brennan is critical of what he refers to as “judicial imperialism”: “the proposition that a court can assume a power to dispense from the criminal laws which protect personal integrity when the judge believes the dispensation is for the welfare of a child.”37 The court, he says:38
is an instrument of State power, and the powers of the State to authorize interference with the personal integrity of any of its subjects otherwise than for therapeutic purposes is not self-evident. If such a power can be exercised to secure what the court may deem to be the welfare of an intellectually disabled child, might not a like power be exercised to secure what the court may deem to be the welfare of any child? It is a power which would be exercised not by an anxious and anguishing parent or guardian who can be called to account, but by a judge to whom the case is assigned in a court’s list and who, having exercised his or her discretion, is discharged from all responsibility for the consequences.
8.21 To the majority in Marion’s case, the court’s determination of an application – at a remove – represents a safeguarding of the child’s interests, whereas for Justice Brennan this has disturbing implications, given past eugenic practices and other “base purposes” underlying sterilisation operations.39
Legislation
8.22 The precursor to the Children and Young Persons (Care and Protection) Act 1998 (NSW) was the Children (Care and Protection) Act 1987 (NSW). The original Act contained no reference to special medical treatments. This was changed with the insertion of s 20B,40 which defined them in sub-section (3) as:
Section 20B provided that special medical treatment could be carried out on a person under 16 years only if a medical practitioner thought it necessary as a matter of urgency in order to save the patient’s life or prevent serious damage to health, or with the Supreme Court’s consent.41 A subsequent amendment42 “[strengthened] … the protective effect” of the Act “by ensuring that the Supreme Court consents to the carrying out of any treatment that is likely to result in a child being rendered infertile only if the court is satisfied that the treatment is necessary to save the child’s life or to prevent serious damage to the child’s health.”43
8.23 The evolution of the NSW legislation would seem to indicate that the concept of special medical treatment was introduced principally to prevent young people from being subjected to sterilisation undertaken without independent scrutiny. Other types of treatment were added soon after.44 During Parliamentary debate it was stated that the principal purpose of the above definition of “special medical treatment” was:45
to make it unlawful to carry out sterilization, except in a case where it is necessary to save the life of the patient or to prevent serious damage to the patient’s health, or unless the Guardianship Board has held a hearing concerning the matter and has given its consent. There have been allegations over a number of years that intellectually disabled people in particular have been improperly sterilized as a means of social control and this practice was condemned by the Anti-Discrimination Board in a report which it produced in 1981. There would be few people in a civilized community who would condone such a thing and it is a principal purpose of this bill to outlaw the practice.
8.24 The legislature’s approach has been more paternalistic than that of the common law. Unlike the common law, the Children and Young Persons (Care and Protection) Act 1998 (NSW) applies to all young persons under 16, regardless of competence, and the Guardianship Act 1987 (NSW) extends this protection to young people over 16 who are incapable of giving consent (as defined in the Act).46 Furthermore, the legislation requires court or tribunal authorisation in circumstances where the common law arguably does not, that is, in cases of medical necessity.
The Commission’s view
8.25 The Commission respectfully agrees with the position taken by both the majority of the High Court and the NSW legislature, that a special treatments regime is necessary to safeguard the rights and well-being of young persons, especially those with disabilities. The authorisation of a court or tribunal helps ensure that independent scrutiny and objective decision-making are brought to bear before procedures with potentially serious repercussions can be performed on children. The Court endorsed the view of Chief Justice Nicholson of the Family Court of Australia that there was less likelihood of abuse of the rights of young people if an application to a court were mandatory.47 The continuing development of the common law through the court’s parens patriae jurisdiction assists in protecting potentially vulnerable young people.
8.26 The Commission endorses the protective policy contained in s 175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) that extends to all young persons under the age of 16, and which prevents them and their parents from consenting to a range of specified treatments. This ensures, amongst other things, that all sterilisation procedures (other than those excepted in sub-paragraphs (i) and (ii) of the definition of “special medical treatment” in s 175(5)(a)) must be authorised, obviating the need to attempt distinguishing, as the common law must, between the “therapeutic” and “non-therapeutic”.48 We recommend that a provision similar to s 175 be incorporated in the proposed new Act. The provision should contain a definition of special medical treatment that accords with the present definition contained in s 175(5)(a), (c) and (d), and which refer to treatments affecting reproductive capacity and any others declared special medical treatments by the regulations.49 Express reference to treatments for the purpose of contraception or menstrual management, as provided for in the definition of “special medical treatment” in s 175(5)(b), is unnecessary.50
8.27 Having access to a Tribunal-based system is also a strong case for retaining the current legislative regime. The expertise of panel members, relative informality and flexibility of the proceedings, and the lower cost and delay involved in hearings before the Tribunal, in comparison with a court, must have a beneficial effect for families caught up in the potentially difficult and stressful situations that necessitate the bringing of such applications. As an alternative to the Tribunal, the Regulations may specify other conditions pertaining to the giving of consent.51
8.28 A further issue is whether the provision should apply only to young people under the age of 16. In the Commission’s view it should. This accords both with the previous determination by the NSW Parliament, as reflected in existing legislative protection, and with the presumption of competence contained in Recommendation 6 of this report. However, it does not follow automatically that competent 16 to 18 year olds could therefore consent to major medical procedures that include sterilisation. The likelihood either that a young person would seek such a procedure or that a medical practitioner would be willing to carry it out is remote. In any event the parens patriae jurisdiction would permit court intervention where notified and warranted. In the case of 16 and 17 year olds lacking Gillick competence (and if Recommendation 4 is enacted) there should be an exception requiring that they also obtain Tribunal or court authorisation before undergoing a special medical treatment. We see no reason why their parents should, at this point, acquire the power to consent to special medical treatment on their behalf.
Recommendation 16
The legislation should provide that a person not carry out special medical treatment on a young person under the age of 16 unless the Guardianship Tribunal consents to the carrying out of the treatment, or unless the treatment is carried out in accordance with the regulations.
The legislation should provide that a person not carry out special medical treatment on a young person aged 16 or over but less than 18 who does not meet the test for competence in Recommendation 4 unless the Guardianship Tribunal consents to the carrying out of the treatment, or unless the treatment is carried out in accordance with the regulations.
The definitions of “medical treatment” and “Guardianship Tribunal” should be in similar terms to those appearing in sub-section 175(5) of the current Children and Young Persons (Care and Protection) Act 1998 (NSW). “Special medical treatment” should mean the treatments identified in paragraphs (a), (c) and (d) of the definition of “special medical treatment” in s 175(5).
Which procedures should require authorisation?
8.29 The Commission’s view, that there should exist a legislative regime governing the authorisation of special medical treatments, raises the question of which procedures this should apply to. There is significant overlap in the list of treatments contained in the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Guardianship Act 1987 (NSW), although they are not identical.52 Understandably, the lists compiled at different dates and for different purposes are not on all fours. Submissions received by the Commission suggested various procedures that should require authorisation. These include sterilisation,53 electro-convulsive therapy,54 gender reassignment,55 donation of reproductive material, organs or bone marrow,56 psychosurgery,57 cosmetic surgery,58 administration of an addictive drug,59 experimental procedures,60 and new treatments not yet supported by a substantial number of practitioners specialising in the area.61 It was also suggested that, in addition to third party authorisation, treatment related to gender reassignment should not be carried out until the child is competent to consent.62
8.30 In Recommendation 16, we adopt the definition of “special medical treatment” in s 175(5) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), in so far as it encompasses treatments relating to reproductive capacity. In the light of the development of the common law and of relevant statute law, we consider this appropriate.63 Beyond this, we express no opinion as to the treatments that should be designated special for the purpose of our proposed legislation. Clearly, the very important task of deciding which treatments should be so designated is outside the Commission’s expertise. A panel comprising medical and other experts in relevant fields should be appointed to advise the government on this matter. If the identification of such treatments is to be kept current, the advice of the panel should be effected by regulation, as s 175(5)(d) envisages.64
8.31 Our substantial adoption of the definition of “special medical treatment” in s 175(5) of the Children and Young Persons Care and Protection Act 1998 (NSW) leaves a major difference between this definition and the definition of “special treatment” in s 33 of the Guardianship Act 1987 (NSW). The latter definition includes “any new treatment that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in the area of practice concerned”.65 We do not believe that it is appropriate to extend the definition of “special medical treatment” in our legislation to include new or innovative therapy. Such therapy may not yet have received peer support because it may not yet have been fully assessed for safety or efficacy in human subjects or because there may be only one person or team working in the field. Where orthodox treatments have been exhausted and such therapy offers the only hope of saving life, restoring health or alleviating suffering, the normal rules relating to consent ought to apply.66 It must be remembered that the “normal rules” necessarily encompass, and are subject to, the parens patriae jurisdiction,67 and that the therapy in question will invariably have received approval from the relevant scientific advisory and medical ethics committees of a hospital.
Recommendation 17
The Government should appoint a panel of experts to consider from time to time, or as needed, the medical treatments that should be declared to be special medical treatments in the regulations.
PRINCIPLES GUIDING DECISION-MAKING
Common law
8.32 In deciding whether to authorise a special medical treatment the court acts in the best interests of the child.68 In the context of sterilisation, the Court explained that its function:
is to decide whether, in the circumstances of the case, that is in the best interests of the child. We have already said that it is not possible to formulate a rule which will identify cases where sterilization is in his or her best interests. But it should be emphasized that the issue is not at large. Sterilization is a step of last resort. And that, in itself, identifies the issue as one within narrow confines.
In the context of medical management, “step of last resort” is a convenient way of saying that alternative and less invasive procedures have all failed or that it is certain that no other procedure or treatment will work. The objective to be secured by sterilization is the welfare of the disabled child. Within that context, it is apparent that sterilization can only be authorized in the case of a child so disabled that other procedures or treatments are or have proved inadequate, in the sense that they have failed or will not alleviate the situation so that the child can lead a life in keeping with his or her needs and capacities.
It is true that the phrase “best interests of the child” is imprecise, but no more so than the “welfare of the child” and many other concepts with which courts must grapple. As we have shown, it is confined by the notion of “step of last resort”, so that, for example, in the case of a young woman, regard will necessarily be had to the various measures now available for menstrual management and the prevention of pregnancy. And, if authorization is given, it will not be on account of the convenience of sterilization as a contraceptive measure, but because it is necessary to enable her to lead a life in keeping with her needs and capacities. 69
8.33 Note that, while the Court alludes to the giving of authorisation where it is “necessary”, it is not restricted to necessity of a medical kind but something broader. Secondly, the Court expressed the view that judges would develop guidelines to give “further content” to the phrase “best interests of the child” in order to respond to the situations that arose.70 This Chief Justice Nicholson did in Re Marion (No 2),71 in which he set out the following factors to determine whether the procedure is in the best interests of the child:
i. the particular condition of the child which requires the procedure or treatment;
ii. the nature of the procedure or treatment proposed;
iii. the reasons for which it is proposed that the procedure or treatment be carried out;
iv. the alternative courses of treatment that are available in relation to that condition;
v. the desirability of and effect of authorising the procedure or treatment proposed rather than the available alternatives;
vi. the physical effects on the child and the psychological and social implications for the child of:
vii. the nature and degree of any risk to the child of:
viii. the views (if any) expressed by:
(a) the guardian(s) of the child;
(b) a person who is entitled to the custody of the child;
(c) a person who is responsible for the daily care and control of the child;
(d) the child
to the proposed procedure or treatment and to any alternative procedure or treatment.
8.34 While sterilisation was singled out as a “special case”, courts have applied the reasoning laid down by the High Court to bring other procedures within the open-ended special medical treatments rubric.72 In its determination the court must subject the application to the “best interests” tests, and in so doing take into account the considerations enunciated by Chief Justice Nicholson in Re Marion (No 2).73
The Guardianship Tribunal
8.35 The Guardianship Tribunal’s authority to consent to special medical treatment is contained in two statutes, the Children and Young Persons (Care and Protection) Act 1998 (NSW), which pertains to all persons under the age of 16, and the Guardianship Act 1987 (NSW), which applies to any persons over 16 (including adults) who are incapable of giving consent.
8.36 In formulating statutory provisions relating to special medical treatment, an important issue is the test that the Tribunal should apply when considering whether to give consent. At present, differences exist between the two Acts in the range of matters the Tribunal must take into account when deciding an application.
8.37 Section 175(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) states:
Consent to the carrying out of special medical treatment on a child must not be given by the Guardianship Tribunal unless the Guardianship Tribunal is satisfied that it is necessary to carry out the treatment on the child in order to save the child’s life or to prevent serious damage to the child’s psychological health or physical health.
8.38 Part 5 of the Guardianship Act 1987 (NSW) deals with a wider range of circumstances involving medical treatment than Chapter 9 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). This may go some way to explain the former Act’s multi-layered restrictions on the Tribunal’s power to give consent. For example, in the case of any medical or dental treatment, the Tribunal must not give its consent unless satisfied that the treatment “is the most appropriate form of treatment for promoting and maintaining the patient’s health and well-being.”74 Additionally in the case of special treatment the Tribunal must not give consent unless:
…satisfied that the treatment is necessary
(a) to save the patient’s life, or
(b) prevent serious damage to the patient’s health,
or unless the Tribunal is authorised to give consent under subsection (3)75
Subsection (3) is fairly convoluted but its effect is to establish, in the case of particular special treatments, alternative criteria according to which the Tribunal may give consent. In the cases of a new treatment that has not yet gained the support of a substantial number of medical practitioners specialising in the area,76 and “prescribed special treatment”,77 the Tribunal may give consent if it is satisfied that the treatment is the only or most appropriate way of treating the patient, that it is manifestly in the best interests of the patient, and that there is compliance with any relevant guidelines prescribed by the National Health and Medical Research Council.78 The medical necessity test contained in subsection (2) is thus only mandatory in the case of sterilisation and the other special treatments contained in the regulations.79
8.39 More generally, s 44(2) lists matters the Tribunal is to have regard to when considering an application for consent to medical or dental treatment, such as any views that may be held by the patient or the person proposing that the treatment be carried out, as well as the objects of Part 5.80 These include ensuring that any medical or dental treatment carried out on people lacking the capacity to consent is “for the purpose of promoting and maintaining their health and well-being.”81
8.40 To gain some understanding of the most suitable test for special medical treatment determinations we look at sterilisation as a case study.
STERILISATION
Common law
8.41 At common law court authorisation is required only for so-called non-therapeutic sterilisations, while parental consent is sufficient to authorise a therapeutic sterilisation. The expression “therapeutic” connotes the treatment of some disease or malfunction.82
8.42 The test applied at common law is the “best interests” test which incorporates the notion of the “step of last resort”.83 While this means that a court has some discretion to take into consideration a range of circumstances, this must not be exercised lightly.84 The Court must recognise the width of the inquiry necessary to be undertaken:85
[T]he decision to sterilize, at least where it is to be carried out for contraceptive purposes, and especially now when technology and expertise make the procedure relatively safe, is not merely a medical issue. This is also reflected in the concern raised in several of the cases reviewed, that the consequences of sterilization are not merely biological but also social and psychological. The requirement of a court authorization ensures a hearing from those experienced in different ways in the care of those with intellectual disability and from those with experience of the long term social and psychological effects of sterilization.
The Court has given consideration to the following factors in deciding whether to authorise sterilisation.
Medical need
8.43 Marion’s case and Re Marion (No 2)86 concerned a 14 year-old girl who was severely intellectually disabled, epileptic and deaf. Her mental age was estimated to be between 18 months and 3 years. Her parents applied to the court for authorisation of an ovariectomy and hysterectomy to be performed on their daughter. Evidence before the court showed that prior to the commencement of each menstrual period Marion would become very aggressive and violent, and was prone to epileptic fitting. This had the potential to cause further brain damage. She also had difficulties managing menstruation, being unable to put on sanitary pads, and having a tendency to remove them or touch them when out in public. The contraceptive Depo Provera was administered as an alternative, but proved unsatisfactory.
8.44 Chief Justice Nicholson found on the facts that the critical issue was the need to minimise Marion’s seizures and reduce the possibility of further brain damage.87 Having thus found the sterilisation warranted on medical grounds, his Honour found it unnecessary to consider other reasons that had been advanced.
Menstrual management and ease of care generally
8.45 Courts have made it clear that convenience is not a sufficient reason to authorise sterilisation,88 but they will not exclude such considerations from the totality of circumstances taken into account in arriving at a decision. In Re Marion (No 2), Chief Justice Nicholson observed that while not wishing to diminish the validity of parental concerns: 89
it must be remembered that these are proceedings where the welfare of the child is paramount. …[T]he decision cannot be made to suit the convenience of caregivers, however valid their concerns may be. However it may be valid to take such matters into account in circumstances where the caregivers may be unable to continue to care for the child if the procedure is not carried out. In such circumstances it may be that the welfare of the child could require the carrying out of such a procedure if the alternative were the institutionalisation of the child or the absence of any other caregiver.
8.46 In P and P and Legal Aid Commission of NSW90 (“P and P”) the Court expressed its agreement with the view of the trial judge that menstrual management alone could not justify sterilisation, but added that it could not be ignored either.
8.47 Women and girls with intellectual disability may be unable to manage their periods. In some cases temporary and reversible measures may be taken to suppress menstruation, for example through injecting the long-acting synthetic hormone Depo-Provera. Long-term use, however, of such treatments may bring a risk of adverse health outcomes,91 especially if the patient is on other medications.
Prevention of pregnancy
8.48 P and P was an appeal to the Full Court of the Family Court following the dismissal of an application for a hysterectomy for a seventeen-year-old girl.92 “Lessli” had been assessed as functioning within the low to moderate range of intellectual disability. Broad grounds for seeking approval of sterilisation were the prevention of menstruation and the risk of pregnancy.93 The court-appointed neurologist thought Lessli vulnerable to sexual abuse, but also thought it likely that she might in the future engage in consensual sexual activity, possibly with others having similar disabilities to herself.94 The Full Court accepted this, adding that Lessli should not be deprived of such experiences and that doing so would discriminate against her because of her disability. The trial judge had previously taken the view that Lessli was unable to engage in consensual intercourse, and that therefore any such act would constitute a sexual assault.95 Despite the fact that Lessli had been assaulted once on a previous occasion, the trial judge was not satisfied that she would be at sufficient risk to warrant such an invasive procedure. The Court observed:96
[The trial judge] commented that it was fully recognised that the intellectually disabled have every right to experience sexual pleasure and to enjoy a sexual relationship. However, her Honour appears to have considered that the degree of disability suffered by Lessli in some way disqualified her from exercising that right. In this regard we think that her Honour confused the possible criminal law consequences to others of engaging in sexual conduct with Lessli with Lessli’s own rights in that regard. Further, if Lessli were to engage in consensual intercourse with a male suffering a similar level of intellectual disability, we doubt the correctness of the proposition that she would be regarded as the victim of a sexual assault. While not discounting the vulnerability of young women with intellectual disabilities to criminal sexual assault the greater problem lies in the risk of pregnancy resulting from such activity, or from a sexual assault in the criminal sense.
8.49 The Court was prepared to sanction a sterilisation in order that Lessli might engage in sexual activity free of the possible consequency of pregnancy.97 In his earlier dissenting judgment in Marion’s case, Justice Brennan had observed that:98
[w]here it is desirable to avoid the risk of pregnancy, the risk may be avoidable by means which involve no invasion of the girl’s personal integrity. Those who are charged with responsibility for the care and control of an intellectually disabled girl … have a duty to ensure that the girl is not sexually exploited or abused. If her disability inclines her to sexual promiscuity, they have a duty to restrain her from exposing herself to exploitation. It is unacceptable that an authority be given for the girl’s sterilization in order to lighten the burden of that duty, much less to allow for its neglect. … If a non-therapeutic sterilization could be justified at all, it could be justified only by the need to avoid a tragedy that is imminent and certain. Such a situation bespeaks a failure of care, and sterilization is not the remedy for the failure.
The Full Court responded99 that the purpose of sterilisation:
is not to lighten the burden of the carers but to avoid the risk to the child of an unwanted pregnancy. We would nevertheless be concerned if the burden placed on the carers was to be so high as to require them to render a child such as Lessli a virtual prisoner. We think that there is much to be said for the approach of Lessli’s mother in this case, which according to the evidence, is to enable Lessli to live as open a life as possible, within her capacities. However it must be recognised that such an approach carries with it certain risks. …
The real purpose of the procedure is … to protect the child from the consequences of sexual intercourse, which … need not necessarily occur as a result of intentional sexual abuse, but would in this case have a serious effect upon her welfare.
8.50 The Court agreed with the trial judge’s assessment that Lessli’s welfare would be detrimentally affected by a pregnancy or by a termination of one.100 However it rejected her proposition that preserving Lessli’s fertility would help protect her from, and enable the detection of, sexual assault. It would neither protect her from the risk of assault nor necessarily reveal the identity of the perpetrator. Sterilisation, likewise, would not protect her from an assault, only from the possible consequence of pregnancy.101 The Court might have added that, conversely, absence of pregnancy is not evidence of absence of abuse.
Compartmentalisation
8.51 The Full Court of the Family Court has considered, and rejected, the notion of “compartmentalisation”. This term describes the approach that considers in isolation, rather than as part of a larger picture, the various grounds that might underpin an application for sterilisation. For example, in its report on the sterilisation of children, the Family Law Council recommended that legislation governing the area should indicate four situations in which the procedure could never be authorised. These scenarios included sterilisation “purely for contraceptive purposes” and “as a means of … avoiding the consequences of sexual abuse”.102 The Court commented:103
The [Family Law] Council has said that sterilisation can never be justified to prevent pregnancies arising from sexual abuse or solely as a means of contraception. The difficulty about these cases is that the relevant circumstances can rarely be looked at in isolation as this approach tends to do.
…The danger involved with the Council’s approach is that, taken literally, it may lead to the adoption of an approach that these factors are to be ignored in the decision making process, which in our opinion would make a travesty of it. The other danger is that of compartmentalisation, which may lead a decision maker to lose sight of the overall object, which is that the best interests or welfare of the particular child are paramount.
8.52 In contrast with a compartmentalised approach, the Court’s view in P and P is that the various factors are “interactive and cumulative”.104 This extends to the fact of the applicant’s intellectual disability. The Court disapproved of the trial judge’s importation into her assessment of a “but for” test, that is asking whether the procedure would be performed “but for” the disability, if it would not be performed on a girl of similar age with normal intelligence.105 It stated:
While it may be superficially attractive to impose this sort of test upon the basis that it is non discriminatory and equates the intellectually handicapped person with the non intellectually handicapped, we think that upon analysis it has the opposite effect. …
We are unconvinced that there is any relevant conclusion to be drawn with regard to the best interests of a particular child by an artificial exercise which compartmentalises a finding of fact about an immutable characteristic and then hypothesises that it were not so. Lessli’s intellectual disability cannot be isolated as a factor and then “subtracted” from the constellation of facts about her, any more than one can simply imagine that she no longer suffers from epilepsy, or that she is infertile, or that she is not a female.
Legislative requirements
8.53 Unlike that of some other States, NSW legislation does not contain specific grounds upon which sterilisation applications may never be approved. As mentioned previously,106 for young persons between the ages of 16 and 18 (as well as adults above this age) the Guardianship Act 1987 (NSW) restricts the Tribunal from giving consent unless it is satisfied that the proposed treatment is necessary to save life or prevent serious damage to health.107 In the case of young persons under the age of 16 the Children and Young Persons (Care and Protection) Act 1998 (NSW) requires the Tribunal to be satisfied that the treatment is necessary to save the child’s life or to prevent serious damage to the child’s psychological or physical health.108
8.54 Most applications for sterilisation concern persons over 16. The Guardianship Tribunal has examined only two cases, “BH” and “VF”, that fall under the Children and Young Persons (Care and Protection) Act 1998 (NSW), both involving girls aged 14. The Reasons for Decision in both cases referred to the decision of the NSW Supreme Court in JLS v JES,109 involving an application for consent to sterilisation under s 20B of the earlier Children (Care and Protection) Act 1987 (NSW). Section 20B(2A) of that Act stated that consent to the carrying out of special medical treatment on a person under 16 could not be given unless the Court was satisfied that the treatment was necessary “to save the child’s life or to prevent serious damage to the child’s health.” This provision was therefore more akin to the present s 45 of the Guardianship Act 1987 (NSW) than the arguably less restrictive section under which “BH” and “VF” actually fell to be decided, namely s 175(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). In JLS v JES Justice Bryson stated:110
The test stated in [sub-section] 2A means that the consent of the court under s 20B cannot be given on grounds related only to views about the child’s management and social integration, or to perceptions of the child’s well-being that are not related to the prevention of serious damage to the child’s health.
8.55 In its Reasons for Decision in the matter of “BH”111 the Tribunal considered an application for a hysterectomy being sought to manage menstrual problems. The Tribunal commented:
[i]n accordance with the terms of the [Children and Young Persons (Care and Protection) Act 1998 (NSW)], the Tribunal in this matter had to be satisfied that the proposed treatment was necessary, in that no alternative treatment could adequately address the needs of Miss H.
Further, it was required to focus on the interests of BH, noting in particular that the proposed surgery was “significant” and irreversible. As no other options had been explored, the Tribunal felt it had insufficient evidence to determine whether the procedure sought was necessary. The hearing was adjourned for six months to allow further information to be provided, however the matter was ultimately withdrawn.
8.56 Consent to sterilisation was granted in the case of “VF”.112 Due to a severe congenital abnormality, VF suffered a great deal of pain, as well as disruption to her school life and social and sporting activities. She had undergone surgery a number of times, but this had not resolved the problems. The Tribunal found that the proposed treatment was necessary. It was satisfied that there was no viable alternative, and that without it she would suffer serious damage to her physical and psychological health and her life would be endangered.
8.57 The Tribunal stated that in interpreting s 175(3) it could be guided and directed by the objects and principles of the Children and Young Persons (Care and Protection) Act 1998 (NSW), particularly those focusing on the child’s safety, welfare and well-being, which are the paramount consideration.113 It was satisfied that the “stringent requirements” of s 175 had been met in this case.
8.58 “LQ”114 concerned an application brought under the Guardianship Act 1987 (NSW) for the sterilisation of a 21-year-old woman with a moderate intellectual disability. The Tribunal found she was unable to manage menstruation “in a way which [would] allow her to carry out her normal activities.” It took into account a dictionary definition of health as being “spiritual, moral or mental soundness”, observing that “it is well recognised that ‘health’ is a concept encompassing much more than physical or bodily well being and refers to the whole person.” The Tribunal accepted evidence “as to the likely detrimental effects on “LQ’s” social and work opportunities and access to activities which are currently available to her, if some method of managing her menstruation is not found.” The Tribunal concluded:
that this deprivation would, on the balance of probabilities, be damaging to LQ’s mental and spiritual health. This finding has to be made in the context of the actual circumstances of LQ’s life. LQ’s disability closes some opportunities to her open to an entirely independent person of her age without that disability. The effect on her of a further restriction of social opportunities and life satisfaction must be evaluated in the light of that fact and is, therefore, more serious for her than it might be for a person who is not similarly disabled.
8.59 The Tribunal stated that it had to take into account that “the dislocation and distress caused to LQ by the continuation of menstruation will be likely to be repeated twelve times a year for thirty years”, the “likely cumulative, long term effect” of which would be “serious”. It was not in accordance with the legislative provisions that LQ “be put through the experience of suffering distress and social deprivation, risking damage to her mental health, to prove conclusively that such damage will actually occur.”
8.60 In the Commission’s view, “LQ” seems to have more in common with Marion’s case and P and P than JLS v JES, in terms of the test applied, which seems closer to a “best interests” approach than one that would normally be understood as purely a “medical necessity”.
8.61 The NSW Guardianship Tribunal is not a court of precedent, so is not bound by its previous decisions. It is an independent decision-making body. Each three-person Tribunal panel, constituted from amongst some 77 part-time members,115 must apply the relevant legislative provisions to the circumstances of each particular case. The Tribunal is able to take a range of evidence into account before making a decision as it is not bound by the rules of evidence and may inform itself in any manner it thinks fit. Its focus is on
the physical, psychological, social and emotional needs of the person the hearing is about. This enables the Tribunal to take a holistic approach to its decision-making.116
The Commission’s view
8.62 In the Commission’s view the Guardianship Tribunal’s stated “holistic” approach, in taking various needs of the applicant into account, is necessary to ensure that all relevant factors are considered before making decisions with potentially serious and life-changing consequences. In order to do so, the Tribunal appears to have taken a broad interpretation of its powers under the two relevant Acts. The current test contained in s 175(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), as applied in the Reasons for Decision cited earlier, seems to be working well, although the number of matters heard has been small.
8.63 Looking at the bigger picture, however, the Commission is concerned that as far as practicable, the statutory regime should encourage parents and carers to seek authorisation before undertaking a special medical treatment for a young person. It is possible that as things stand, procedures such as sterilisation are undertaken without lawful authorisation having been sought. Reliable statistics are probably impossible to obtain.117 Bypassing the courts or Guardianship Tribunal to perform special treatments without authorisation carries the risk that insufficient scrutiny and care inform these decisions, and that the human rights of young persons, especially those with disabilities, may be abused.
8.64 In IP 24 we discussed the overlapping power of various forums with jurisdiction in this area, and the potential uncertainty or confusion regarding the limits of, and the different criteria operating within, each jurisdiction.118 Additionally this opens up the possibility of “forum-shopping”,119 whereby the parents may bring consecutive applications in various courts or the Tribunal if the initial application has failed. This situation may lead to added cost, delay and an ineffective use of judicial resources, the antithesis of what a tribunal should achieve. The Commission believes that such detriments would be alleviated to a large extent if there were greater consistency between the tests operating in different jurisdictions. As well as acting as a deterrent to forum-shopping, consistency would also simplify the application of the law in this area by removing potentially confusing parallel tests, and providing a greater body of case law that could be drawn on to assist tribunals in interpretation.
8.65 The Family Law Council, whose function is to advise and make recommendations to the Commonwealth Attorney-General in relation to family law, called for “a statutory framework which clarifies the existing confusing array of provisions and ensures that a consistent national approach is adopted for the protection of all Australian children”.120 The sterilisation of young people has been the subject of numerous other reports and has recently been examined by the Standing Committee of Attorneys-General (“SCAG”) to see whether a nationally consistent approach to authorisation can be formulated. In March 2008, SCAG decided not to pursue the development of national model legislation because existing legislation governing sterilisation in each jurisdiction appears to be working adequately and because of recent improvements in treatment options and education initiatives.121
8.66 In the Commission’s view it would be difficult to sustain an argument that the rights of young persons would be compromised if, in place of a “medical necessity” test, the best interests test, as applied by the courts in determining applications, were adopted by the legislature and applied by the Guardianship Tribunal. As we have said earlier, courts have been careful to enunciate strict limits on the power to authorise special medical treatments, and it cannot be envisaged that the application of a best interests test could result in a young person undergoing a procedure that was not necessary to prevent serious damage to his or her physical and/or psychological health.
8.67 Other States’ statutes provide useful models. For example chapter 5A of the Guardianship and Administration Act 2000 (Qld) is concerned with consent to sterilisations of children with impairments, children being defined as those under 18.122 The Queensland Guardianship and Administration Tribunal may only consent to the sterilisation of a child if satisfied that it is in his or her best interests.123 It is only regarded as being in the child’s best interests if one or more of the following applies:124
(i) the sterilisation is medically necessary;
(ii) the child is, or is likely to be, sexually active and there is no method of contraception that could reasonably be expected to be successfully applied;
(iii) the child has problems with menstruation and its cessation by sterilisation is the only practicable way of overcoming this.
Other considerations to be taken into account include the feasibility of postponing the procedure, and whether the sterilisation is otherwise in the child’s best interests. Similar grounds are prescribed by the Guardianship and Administration Act 1993 (SA).125 Sterilisation is not permitted by the Queensland statute for eugenic reasons or to remove the risk of pregnancy resulting from sexual abuse.
Recommendation 18
The legislation should provide that the Guardianship Tribunal must not consent to the carrying out of special medical treatment on a young person under the age of 16, or a young person aged 16 or 17 who is not competent to consent to health care, unless the Tribunal is satisfied that in all the circumstances it is in the best interests of the young person.
EFFECT OF OUR LEGISLATION ON OTHER LEGISLATION
8.68 Section 175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) falls within Part 1 of Chapter 9, which deals with medical examination and treatment. Part 1 is entitled “Medical examination of children and young persons in need of care and protection”. Section 175 deals exclusively with special medical treatment, and applies universally to young persons under 16, not just those in need of care and protection. Therefore, if our legislation is enacted there is no need for s 175 to remain in the existing Act. Other provisions in Chapter 9 that relate to young people in need of care and protection or in out-of-home care should not be affected.
Recommendation 19
If Recommendations 16-18 are implemented, Chapter 9 Part 1 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), should be restricted in its application to young persons in need of care and protection.
JURISDICTION
8.69 The proposed legislation will not oust the jurisdiction of the Supreme Court or the Family Court to authorise special medical treatments. This is why the possibility of forum-shopping, referred to earlier, continues to be a live issue, regardless of whether new legislation is enacted or not. However, the adoption of Recommendation 18 would make this much less likely.
8.70 Section 247 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) states that nothing in that Act limits the jurisdiction of the NSW Supreme Court. In a similar way the provision concerned with special medical treatments in the proposed Act should, for the sake of clarity, acknowledge that the Supreme Court may also authorise such applications. The Guardianship Act 1987 (NSW) already makes clear that the Supreme Court may hear appeals from decisions of the Guardianship Tribunal.126
Recommendation 20
The legislation should contain a provision stating that nothing in the Act limits the jurisdiction of the Supreme Court.
FOOTNOTES
1. See Chapter 7.
2. Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) ( 1992) 175 CLR 218, 249.
3. This assumes that the young person himself or herself lacks capacity to consent. Where the young person is competent, the common law and legislation differ as to whether he or she is able to provide a lawful consent for a special treatment: see para 8.17, 8.24.
4. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175(1), (2), (5).
5. Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218.
6. Marion’s case (1992) 175 CLR 218, 249, 253. Previous decisions were divided on this subject, with two holding that parental consent was sufficient (Re a Teenager (1988) 94 FLR 181; Re S (1989) 98 FLR 41) and two holding that court authorisation was required (Re Jane (1988) 94 FLR 1; Re Elizabeth (1989) 13 Fam LR 47).
7. Marion’s case (1992) 175 CLR 218, 239.
8. Marion’s case (1992) 175 CLR 218, 253.
9. Re Alex (2004) 180 FLR 89, 120.
10. Re Marion (No 2) (1992) 17 Fam LR 336, 355.
11. Marion’s case (1992) 175 CLR 218, 250.
12. Eg Marion’s case (1992) 175 CLR 218.
13. Re A (1993) 16 Fam LR 715.
14. Re W (1997) 136 FLR 421.
15. Re Alex (2004) 180 FLR 89.
16. Queensland v B [2008] QSC 231, [17].
17. Marion’s case (1992) 175 CLR 218, 250.
18. See discussion at para 1.43 – 1.47.
19. Marion’s case (1992) 175 CLR 218, 250.
20. This is the term used by the High Court: Marion’s case (1992) 175 CLR 218, 250; compare discussion at para 1.10.
21. Marion’s case (1992) 175 CLR 218, 252.
22. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175(2)(a).
23. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175(2)(b), (c).
24. Guardianship Act 1987 (NSW) s 33(2), 34(1).
25. Guardianship Act 1987 (NSW) s 36(1), 37(1). Major or minor treatment, defined in the Act at s 33(1), are irrelevant for the purposes of this discussion.
26. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175(5); Guardianship Act 1987 (NSW) s 33(1), Guardianship Regulation 2005 (NSW) cl 8(c).
27. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175(5), Children and Young Persons (Care and Protection) Regulation 2000 (NSW) cl 15(1)(a). See also Guardianship Act 1987 (NSW) s 33(1), Guardianship Regulation 2005 (NSW) cl 8(a).
28. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175(5), Children and Young Persons (Care and Protection) Regulation 2000 (NSW) cl 15(1)(b).
29. Guardianship Act 1987 (NSW) s 33(1).
30. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175(5), Children and Young Persons (Care and Protection) Regulation 2000 (NSW) cl 15(1)(c).
31. Guardianship Act 1987 (NSW) s 45(3)(b), Guardianship Regulation 2005 (NSW) cl 9(a).
32. Guardianship Act 1987 (NSW) s 45(3)(b), Guardianship Regulation 2005 (NSW) cl 9(b).
33. Guardianship Act 1987 (NSW) s 33(1), Guardianship Regulation 2005 (NSW) cl 8(b).
34. Guardianship Act 1987 (NSW) s 33(1), Guardianship Regulation 2005 (NSW) cl 8(d).
35. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175(1).
36. Guardianship Act 1987 (NSW) s 34(1).
37. Marion’s case (1992) 175 CLR 218, 284.
38. Marion’s case (1992) 175 CLR 218, 283-284.
39. Marion’s case (1992) 175 CLR 218, 275 (Brennan J).
40. Inserted by the Children (Care and Protection) (Disability Services and Guardianship) Amendment Act 1987 (NSW), an Act cognate with the Disability Services and Guardianship Act 1987 (NSW).
41. Children (Care and Protection) Act 1987 (NSW) s 20B(1), (2).
42. Children (Care and Protection) Further Amendment Act 1988 (NSW).
43. NSW, Parliamentary Debates, Legislative Council, 13 October 1988, 2202 (Virginia Chadwick, Minister for Family and Community Services).
44. The Children (Care and Protection – General) Regulation 1988 (NSW) contained no reference to special medical treatments. Other special medical treatments were declared when the Regulation was amended in 1989 (No 502).
45. NSW, Parliamentary Debates, Legislative Assembly, 12 November 1987, 15939 (John Aquilina, Minister for Youth and Community Services).
46. Guardianship Act 1987 (NSW) s 33(2). See also Rec 9.
47. Marion’s case (1992) 175 CLR 218, 253.
48. Nicholson CJ acknowledged the potential problem of “disentangling therapeutic from non-therapeutic aims” as there could be “mixed aims” associated with a procedure: Re Jane (1988) 94 FLR 1, 30 The High Court also commented on the uncertainty of the distinction: Marion’s case (1992) 175 CLR 218, 250. Marion’s case itself illustrated the problem for, as Nicholson CJ stated, it “[i]ronically enough …[fell] into the category of cases where the court’s consent is unnecessary since … the procedure was required for medical and therapeutic reasons”: Re Marion (No 2) (1992) 17 Fam LR 336, 355.
49. See para 8. 30.
50. Previous specific references to long-acting injectable hormonal substances that appeared in earlier versions of both the Children and Young Persons (Care and Protection) Act 1998 (NSW) and Regulations have been deleted, and presently no treatment for the purpose of contraception or menstrual regulation is declared by the Regulations. Furthermore, the NSW Guardianship Tribunal, in Application for consent to special medical treatment for Miss CJ, March 2001, stated:
“This application brought home to the Tribunal the inappropriateness of Depo-Provera or preparations very similar to it being defined as special medical treatment in section 175 of the Children and Young Persons (Care and Protection) Act whilst all other forms of contraception short of sterilisation are not so included. The Tribunal could not see the social benefit in this provision, nor could it identify who was being protected by it. Indeed, this case indicated that if the Tribunal had not been satisfied as to the test required in section 175(3), Miss J may well have been placed in a situation where she was likely to face a second pregnancy while still a child and as a result suffer serious damage to her psychological health.
Children and young persons in Miss J’s situation are in need of careful support and training and ready access to contraceptive medication appropriate to their particular needs. This provision seems to be contrary to the general thrust of the legislation. In operation, it appears to have the exact opposite effect of the intent of protecting children and young persons from health threatening situations.”
On the basis of its experience in this application, the Tribunal considers that there is a case for removing this provision from the Act.
51. As currently worded s 175 contains an ambiguity. According to s 175(2)(b) a medical practitioner may carry out special treatment if the Guardianship Tribunal has consented to the sterilisation procedures listed in paragraphs (a), (b) and (c) of the definition of special medical treatment in s 175(5). There is also, however, a paragraph (d) within that definition, which alludes to “any other medical treatment that is declared by the regulations to be special medical treatment for the purposes of this section”. It is unclear whether the Tribunal is authorised to consent to these other treatments appearing in cl 15 of the Children and Young Persons (Care and Protection) Regulation 2000 (NSW). Section 175(2)(c) provides that a medical practitioner may carry out special medical treatment if “consent is granted to the carrying out of the treatment in accordance with the regulations.” Again, as there is no reference in cl 15 to the Tribunal, it is unclear whether it has authority to consent to the treatments listed. There is also some ambiguity regarding the NSW Supreme Court’s authority to consent to special medical treatments under this Act. Section 175(1) states that “a person must not carry out special medical treatment on a child otherwise than in accordance with this section.” Although a previous reference to the Supreme Court in s 20B(2) of the Children (Care and Protection) Act 1987 (NSW) has been replaced by a reference to the Tribunal in the present provision, s 247 of the current Act states that nothing in this Act limits the jurisdiction of the Supreme Court.
52. See list above at para 8.18.
53. Doctors Reform Society, Submission, 4; National Children’s and Youth Law Centre, Submission, 14; NSW Commission for Children and Young People, Submission, 9; S Siedlecky, Submission, 10.
54. Doctors Reform Society, Submission, 4; National Children’s and Youth Law Centre, Submission, 15; S Siedlecky, Submission, 10.
55. Doctors Reform Society, Submission, 4; National Children’s and Youth Law Centre, Submission, 15; S Siedlecky, Submission, 10.
56. National Children’s and Youth Law Centre, Submission, 15.
57. Doctors Reform Society, Submission, 4; S Siedlecky, Submission, 10.
58. Doctors Reform Society, Submission, 4; S Siedlecky, Submission, 10; National Children’s and Youth Law Centre, Submission, 15, and NSW Commission for Children and Young People, Submission, 10, both referred to “non-therapeutic cosmetic surgery”.
59. National Children’s and Youth Law Centre, Submission, 15.
60. National Children’s and Youth Law Centre, Submission, 15.
61. NSW Commission for Children and Young People, Submission, 9.
62. Shopfront Youth Legal Centre, Submission, 7; S Siedlecky, Submission, 10; Androgen Insensitivity Syndrome Support Group, Submission, 15-16, 20.
63. See para 8.8-8.13, 8.22-8.23.
64. The National Children’s and Youth Law Centre, Submission, 15 and the Shopfront Youth Legal Centre, Submission, 7 support this approach.
65. Currently the Children and Young Persons (Care and Protection) Regulation 2000 (NSW) cl 15(1)(b) applies only to “experimental” procedures” (and needs updating to reflect the fact that the ethics guidelines referred to are revised every few years, most recently in 2007). We do not suggest that clear distinctions can be drawn between innovative therapy and “experimental procedures” beyond the inclusion of the latter in a formal research program: see E Jackson, Medical Law: Text, Cases, And Materials (2006), 459-460.
66. This accords with World Medical Association, Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects (2000) art 32, <http://www.wma.net/e/policy/b3.htm> (at 15 September 2008). For the position under the Guardianship Act 1987 (NSW) see para 8.33.
67. See para 8.2. And consider Simms v Simms [2003] 1 All ER 669.
68 Marion’s case (1992) 175 CLR 218, 259.
69. Marion’s case (1992) 175 CLR 218, 259-260.
70. Marion’s case (1992) 175 CLR 218, 259-260.
71. Re Marion (No 2) (1992) 17 Fam LR 336, 351-352.
72. See para 8.8.
73. Re Marion (No 2) (1992) 17 Fam LR 336, 351-352.
74. Guardianship Act 1987 (NSW) s 45(1).
75. Guardianship Act 1987 (NSW) s 45(2).
76. Guardianship Act 1987 (NSW) s 45(3)(a).
77. Guardianship Act 1987 (NSW) s 45(3)(b), Guardianship Regulation 2005 (NSW) cl 9 (“treatment that involves the administration … of one or more restricted substances for the purpose of affecting the central nervous system of the patient…” and “treatment that involves the use of androgen reducing medication for the purpose of behavioural control”).
78. Guardianship Act 1987 (NSW) s 45(3)(c) and (d).
79. Guardianship Regulation 2005 (NSW) cl 8.
80. Guardianship Act 1987 (NSW) s 32.
81. Guardianship Act 1987 (NSW) s 32(b).
82. Re Jane (1988) 94 FLR 1, 11.
83. See para 8.32.
84. Marion’s case (1992) 175 CLR 218, 259-260.
85. Marion’s case (1992) 175 CLR 218, 251.
86. Re Marion (No 2) (1992) 17 Fam LR 336.
87. Re Marion (No 2) (1992) 17 Fam LR 336, 353, 355
88. Marion’s case (1992) 175 CLR 218, 260.
89. Re Marion (No 2) (1992) 17 Fam LR 336, 352-353.
90. P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1, 23.
91. Western Australian Law Reform Commission, Consent to Sterilisation of Minors, Report No 77(II) (1994) [2.35] – [2.37], [2.44].
92. For overlap of State and federal jurisdictions see para 8.69.
93. P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1, 10.
94. P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1, 14.
95. P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1, 11.
96. P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1, 14.
97. P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1, 17.
98. Marion’s case ( 1992) 175 CLR 218, 276.
99. P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1, 17.
100. P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1, 15.
101. P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1, 15-16.
102. Family Law Council, Sterilisation and Other Medical Procedures on Children, Report (1994) Rec 3.
103. P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1, 18.
104. P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1, 21.
105. P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1, 20.
106. See para 8.15 – 8.16.
107. Guardianship Act 1987 (NSW) s 45(2).
108. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175(3).
109. JLS v JES (1996) 20 Fam LR 485.
110. JLS v JES (1996) 20 Fam LR 485, 486.
111. NSW Guardianship Tribunal, Application for consent to special medical treatment for Miss BH, November 2005. The matter was adjourned in order to allow further evidence to be put before the Tribunal in support of the application which was ultimately withdrawn.
112. NSW Guardianship Tribunal, Application for consent to special medical treatment for Miss VF, February 2007.
113. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 8, 9.
114. NSW Guardianship Tribunal, Application for consent to special medical treatment for Miss LQ, March 2003.
115. NSW, Guardianship Tribunal, Annual Report 2005-2006, 5.
116. NSW, Guardianship Tribunal, Annual Report 2005-2006, 5.
117. Susan Brady, John Briton and Sonia Grover, The Sterilisation of Girls and Young Women: Issues and Progress (Human Rights and Equal Opportunity Commission, 2001) 14-20, 56.
118. NSW Law Reform Commission, Minors’ Consent to Medical Treatment, Issues Paper No 24 (“IP 24”) (2004) [4.27] – [4.33].
119. IP 24 [4.29].
120. Australia, Family Law Council, Sterilisation and Other Medical Procedures on Children, Report (1994), 5.
121. Commonwealth, Attorney-General, media releases 28 March 2008 Communique – Standing Committee of Attorneys-General, available at http://www.attorneygeneral.gov.au/www/ministers/robertmc.nsf/Page/Media_Releases (at 9 May 2008).
122. Guardianship and Administration Act 2000 (Qld) s 80A. Chapter 5 deals with special treatments for adults.
123. Guardianship and Administration Act 2000 (Qld) s 80C(2).
124. Guardianship and Administration Act 2000 (Qld) s 80D.
125. Guardianship and Administration Act 1993 (SA) s 61.
126. Guardianship Act 1987 (NSW) s 67.
