Updates and background for this project (Digest)

Recommendation 1

Legislation should regulate the decision-making process for young people’s health care. The legislation should contain rules for determining:
• when a young person is legally entitled to make a decision about his or her health care generally;
• when a young person is legally entitled to make a decision about particular types of health care; and
• when a young person’s parent, legal guardian, caregiver or other substitute decision-maker is legally entitled to override a young person’s decision about his or her health care.
The legislation should also provide:
• for the legal consequences of compliance or non-compliance with its provisions;
• definitions of key terms; and
• a statement of principles to guide the interpretation and application of the legislation.

The legislation should include a provision setting out the following principles to be applied in the interpretation and application of the legislation:
• Young people should be informed about matters relating to their health care, to the extent and in a manner appropriate to their age and maturity, and should be given the opportunity to express their views freely about these matters, and their views should be given due weight in accordance with their age and maturity.
• The developing autonomy of the young person should be acknowledged.
• Respect should be given to the responsibilities and role of parents in the health care of their child or, where applicable, the members of the extended family or persons legally responsible for the young person, in a manner consistent with the evolving capacities of the young person.
• Account should 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.
• Access by young people to appropriate health care should be promoted.
• The best interests of the young person should be the primary consideration.

The legislation should adopt the following definitions:

a young person means a person who is under the age of 18 years,

a parent means a person having parental responsibility for the young person,

parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children,

a health practitioner means a natural person who is registered under a health registration Act,

a health registration Act means any of the following Acts:


Chiropractors Act 2001

Dental Technicians Registration Act 1975

Dental Practice Act 2001

Medical Practice Act 1992

Nurses and Midwives Act 1991

Optical Dispensers Act 1963

Optometrists Act 2002

Osteopaths Act 2001

Pharmacy Practice Act 2006

Physiotherapists Act 2001

Podiatrists Act 2003

Psychologists Act 2001


or an Act prescribed by regulations as a health registration Act.

a health service is a service provided by a health practitioner and includes the following services, whether provided as public or private services:

(a) medical, hospital and nursing services,

(b) dental services,

(c) mental health services,

(d) pharmaceutical services,

(e) ambulance services,

(f) community health services,

(g) health education services,

(h) welfare services necessary to implement any services referred to in paragraphs (a)-(g),

(i) alternative health care services,

(j) forensic pathology services,

(k) a service prescribed by the regulations as a health service for the purposes of this legislation.

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

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

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

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

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

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

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

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.

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.

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.

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).

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.

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).

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.

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.

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.

The legislation should contain a provision stating that nothing in the Act limits the jurisdiction of the Supreme Court.

The legislation should provide for it to be a ground for complaint to the Health Care Complaints Commission and/or to the relevant health registration authority that a health practitioner acted in breach of the provisions of the legislation. The legislation should make it clear that any action available to the Health Care Complaints Commission and/or to a health registration authority under the Health Care Complaints Act 1993 (NSW) or a health registration Act (as defined in Recommendation 3), including alternative dispute resolution, is available to resolve complaints about breaches of this legislation relating to young people’s competence.

The legislation should make it clear that nothing in Recommendation 21 affects any other grounds of liability that might arise from a complaint against a practitioner for breaching the provisions of the legislation.

The legislation should provide for a defence for health practitioners from civil or criminal liability, or from a complaint made to the Health Care Complaints Commission or a health registration authority, where such action is based on a practitioner’s assessment of a young person’s competence, according to Recommendation 4 (but not where it is based on grounds other than competence, such as negligence). The defence should be available if the health practitioner reasonably but mistakenly believes that the young person is competent or incompetent, according to the criteria set out in Recommendation 4.