• Making decisions about medical treatment: key concerns
• The aims of this issues paper
• Young people’s health concerns
• Young people’s decision-making capacity
• Scope of current regulation and State intervention
• Rights and interests at stake
• Medicare: a practical obstacle to medical care?
• Definitions
• Structure of the paper

MAKING DECISIONS ABOUT MEDICAL TREATMENT: KEY CONCERNS

1.1 When can young people, below the age of 18, make decisions about their medical care by themselves? When should young people be able to make decisions about their medical care by themselves? Who should be able to make decisions about a young person’s medical care on the young person’s behalf? What should be the legal liability of medical practitioners who treat young people without a valid consent?

1.2 These are the questions central to the Law Reform Commission’s reference. The terms of reference are:

To inquire into and to report on the laws relating to the consent of minors in New South Wales to medical treatment, with particular reference to:

(a) whether the rights and interests of minors and of parents and guardians are appropriately recognised;

(b) whether medical practitioners are adequately protected;

(c) whether codification and/or amendment of the law is necessary; and

(d) any related issues.

• the legal competence of young people to consent to, and refuse, medical treatment;
• the legal framework governing consent to, and refusal of, medical treatment of young people in situations where young people are not legally competent to make that decision themselves;
• the situations in which a medical practitioner can legally treat a young person without consent;
• implications for maintaining patient confidentiality when treating a patient under 18.

1.5 Underlying the discussion in Chapter 1 and, indeed, the entire Issues Paper, are two fundamental concerns: why is it important to scrutinise the law governing consent to the medical treatment of young people; and what should legal reform be seeking to achieve in this area? The Commission hopes to put forward some tentative answers to these questions in this Paper and to provoke responses from the public to assist both in identifying issues relevant to young people’s consent to medical treatment and in determining which direction legal reform, if needed, should take.

THE AIMS OF THIS ISSUES PAPER

1.6 This Issues Paper aims to provide a summary of the main issues relating to the law governing the consent of young people to medical treatment. The Commission has sought to identify appropriate parameters for the reference, and the main areas of interest and concern within those parameters. Rather than providing an in-depth discussion of the law and its underlying policies, this Paper aims to act as a springboard for further community consultation and subsequent, more detailed commentary by the Commission.

1.7 Each chapter of this Paper poses one or more questions, seeking your views in response. These questions appear in bold and are referred to as Issues 1, 2, 3, and so on. For details on how to make a submission to the Commission in response to this Issues Paper, and the date by which to do so, see page vii. Following the release of this Paper, the Commission will continue its process of community consultation which, in addition to reviewing submissions received from interested members of the public, will include meeting with groups and individuals in the community who have particular expertise, experience or interest in this area. This process of community consultation will assist us in ultimately determining whether, and to what extent, legal reform is necessary, and making recommendations as to the form and direction such reform should take.

YOUNG PEOPLE’S HEALTH CONCERNS

1.8 What are some of the typical health concerns of our young people in relation to which the question of who should have the legal right to consent to or refuse medical treatment may be controversial? This section seeks to provide some examples of such health concerns, both to stimulate debate about the law governing consent to medical treatment and to illustrate that the health concerns of young people are real, significant and various, requiring a clear legal framework by which medical practitioners can provide care with relative certainty of the law, and young people can have their health concerns met in appropriate ways.

1.9 For the purpose of this discussion, young people can be grouped into two broad categories: adolescents and younger, pre-adolescent children. The term “adolescents” is used here to refer to young people who have entered puberty and who are below 18.¹ The health concerns of particular significance to each group generally vary and give rise to different considerations in formulating a legal framework to determine who can make decisions about their medical care.

Adolescents

1.10 In the past, the question of whether a young person could legally consent to or refuse medical treatment has typically attracted attention in relation to matters involving adolescent health.² Adolescents face particular health concerns relevant to the physical, mental and emotional developments of puberty. These concerns include:³

• A heightened preoccupation with body image and the physical changes to their bodies. Adolescents may seek medical treatment and advice for the changes their bodies undergo in puberty. For some, increased concern for their physical attractiveness may lead to, for example, development of an eating disorder, or even a desire for cosmetic surgery.⁴
• Increased awareness of sexuality. Adolescents usually become curious about sex and their own sexuality. Some become sexually active in their teenage years. They may seek medical advice and treatment for contraception, sexually transmitted diseases, or pregnancy.
• Experimentation with drugs and alcohol. Some adolescents may begin to experiment with drugs and alcohol. Some may have problems with substance addiction, and may need treatment for the physical and mental effects of addiction.⁵
• Onset of mental illness, including depression. The mental health of Australian adolescents has been the subject of much public discussion in recent years,⁶ with depression and the threat of suicide posing serious risks to the lives of many young people. Adolescence is also a time when about 75 percent of mental disorders first become apparent.⁷ Adolescents may seek counselling, and other forms of treatment, including medication, to address concerns with their mental health.

Younger children

1.12 It is more difficult to generalise about the typical types of health concerns of younger, pre-adolescent children. Obviously, young children do not yet usually face the health concerns typically associated with puberty.⁸ Instead, they are likely to require medical treatment, from time to time, for a wide range of childhood injuries and illnesses, varying from, for example, the common cold, to ear infections, to gastroenteritis, from cuts, to bruises, to broken limbs. They may require regular management of chronic health conditions, such as asthma, juvenile diabetes or eczema. As they develop, they may require treatment for learning or behavioural problems. Parents may seek to immunise their young children against a number of illnesses for which vaccines are now available, such as measles, mumps, chickenpox and hepatitis B. Apart from these more everyday health concerns, there are other health concerns which are more serious and may require decisions about life-saving treatment or invasive and irreversible treatment. Young children may also be found to be medically suited to blood or tissue donation, to benefit, for example, another family member, and the question then arises of who should have the authority to consent to or refuse such a donation.

1.13 Of course, the health concerns outlined above are not limited to young children. They can also affect the general population. The difference for young children is that, because of their immaturity, they are usually voiceless in the way their health concerns are addressed. This vulnerability makes it important to ensure that their welfare is protected and their best interests promoted.

YOUNG PEOPLE’S DECISION-MAKING CAPACITY

1.14 The capacity of young people to make their own decisions about their medical care has been the subject of psychological theories and empirical research.⁹ Piaget¹⁰ developed a model of young people’s cognitive development, which asserted that the capacity to make an intelligent choice generally appears in a child between the ages of 11 and 14. At this stage of their cognitive development, children have the ability to deal with abstractions, use deductive and inductive reasoning, apply reason to hypothetical situations and think about the future. They can therefore consider different options and their consequences. In their empirical study, Weithorn and Campbell¹¹ compared the decision-making capacity of a group of children aged 9 to 14 with a group of adults aged 18 to 21. The 14 year olds were found to demonstrate a level of competence equivalent to the adults.¹² The 9 year olds had significantly less developed skills in understanding and reasoning but despite this, did not differ significantly from the adults in the final choices they made about medical treatment. The study concluded that, despite their poorer understanding and failure to consider fully many of the critical elements of disclosed information, the 9 year olds tended to make clear and sensible treatment preferences, similar to the adults within the sample group.

1.15 While these studies provide some support for the assertion that, at least by the age of 14, young people have attained the same level of cognitive development as adults to make medical treatment choices, other writers have emphasised that young people’s decision-making capacity must also be judged according to their “social development”.¹³ Young people may not have developed an internal capability for free, deliberate choice, which results not just from a level of cognitive maturity, but also from emotional development and a sense of distinct “personhood”.¹⁴ Research suggests that, in early adolescence, young people have a greater tendency than at any other time toward conformity, with the risk of deferential responses to requests for consent being at its greatest until the ages 15-17.¹⁵ Each young person’s decision-making capacity should be assessed with reference to the range of his or her experiences, and individual qualities, such as his or her abilities and confidence, relational style with authority and emotional state. A young person’s decision-making capacity will also be affected by external factors, such as the nature and circumstances of the particular decision, the nature of the information provided to the young person and the way in which it is communicated, and the expectations of the adults involved in the decision.¹⁶ Cauffman and Steinberg argue that, when determining young people’s competence, it is not sufficient simply to consider their cognitive differences and similarities with adults, but also their maturity of judgment. They claim that adolescents are more likely to differ from adults in their sense of responsibility (autonomy, identity and self-reliance), their perspective (sense of morality and context) and their temperance (regulation of emotion, avoidance of extremes and non-impulsivity). However, the way in which these differences affect the young person’s maturity of judgment has not been sufficiently subjected to empirical research to make any considered assessment of their decision-making capacity in respect of medical treatment.¹⁷

SCOPE OF CURRENT REGULATION AND STATE INTERVENTION

1.16 At present, there is no single legal framework in New South Wales to regulate the rights and roles of young people, parents, medical practitioners and other interested parties in making decisions about young people’s medical treatment. Legislation applies to some aspects of this decision-making process. The relevant pieces of legislation are:¹⁸

• Minors (Property and Contracts) Act 1970 (NSW);
• Children and Young Persons (Care and Protection) Act 1998 (NSW);
• Guardianship Act 1987 (NSW); and
• Family Law Act 1975 (Cth).

1.18 The common law (judge-made law) reflects greater consideration than current legislation of the rights and responsibilities of young people and parents in the process of making decisions about young people’s medical treatment. It has developed a test for determining young people’s legal competence to make their own medical decisions, following the courts’ consideration of the rights of parents and their children.¹⁹ However, it has not yet developed to the extent of delineating clearly the lines of liability for the medical profession, nor necessarily providing young patients and parents with remedies to enforce their rights in respect of all types of treatment.

1.19 The law assumes that adults are competent to make decisions about their medical treatment, whether it be to consent to, or refuse, such treatment.²⁰ That assumption is based on the principles of self-determination and autonomy, that is, the notion that individuals, of adult age, have the right to choose how they live and what should be done with their own bodies. That right is absolute, even if the decision made by a particular individual about his or her own medical care is not generally considered to promote his or her best interests.²¹ People below the age of 18 neither enjoy that same assumption nor the same recognition of their right to self-determination. Current regulation of the decision-making process for the medical treatment of young people is too limited in its aims to consider, in any meaningful way, whether, and in what circumstances, the continued curtailment of that right can be justified.

RIGHTS AND INTERESTS AT STAKE

1.20 What should the law be aiming to achieve in regulating the ability of young people and others to make decisions about a young person’s medical treatment? In the broadest sense, the State has in interest in ensuring that the medical treatment of young people promotes their best interests. More particularly, it could be argued that the law should aim to achieve, at the least, the following:

• It should ensure that young people have ready access to appropriate medical care;
• It should recognise and protect young people’s rights to participate in decisions affecting them and to exercise some control over their own health care relative to their level of maturity;
• It should protect young people from detrimental decisions that may harm them;
• It should recognise the role of parents and the State in participating in decisions affecting their child’s welfare and in determining what is in his or her best interests, and promote the community’s interest in encouraging parents to take responsibility for their child’s well-being;
• It should provide the medical profession with a workable, clear and consistent framework for treating young people in order to provide them with the best possible care.

1.22 The United Nations Convention on the Rights of the Child²² acknowledges these rights and represents a promise by its signatories, including Australia, to protect and promote them. Article 24(1) states that:

States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.²³

Before consent is given by parents, adolescents need to be given a chance to express freely their views and they should be given due weight, in accordance with article 12 of the Convention. However, if the adolescent is of sufficient maturity, informed consent shall be obtained from the adolescent her/himself, while informing the parents, if this is in the “best interest of the child” (article 3).²⁵

1.27 In Australia, federal legislation gives the Human Rights and Equal Opportunity Commission the responsibility of ensuring that federal legislation is not inconsistent with the rights enshrined in the Convention on the Rights of the Child (among other instruments),²⁷ of promoting an understanding and public discussion of those rights and of reporting on any action that Australia needs to take to comply with the provisions set out in the Convention.²⁸

1.28 At a State level, New South Wales has given express recognition in legislation to the importance of protecting and promoting the safety and well-being of young people, while at the same time acknowledging their right to participate in decisions that affect them. The New South Wales Commission for Children and Young People is a government body set up to protect the interests of young people in the provision of government and non-government services and the implementation of legislation and government policies. Its work is governed by three statutory principles, as provided in s 10 of the Commission for Children and Young People Act 1998 (NSW). These are:

(a) the safety, welfare and well-being of children are the paramount consideration;

(b) the views of children are to be given serious consideration and taken into account;

(c) a co-operative relationship between children and their families and community is important for the safety, welfare and well-being of children.

MEDICARE: A PRACTICAL OBSTACLE TO MEDICAL CARE?

1.30 It is pointless to consider reform to the decision-making processes concerning young people’s medical treatment, without also taking into account practical obstacles that stand in the way of young people gaining ready access to appropriate health care. One of the most obvious, and most significant, obstacles arises from possible problems for young people in making use of the Medicare system. Many young people, with no significant sources of income, are unlikely to be able to seek medical treatment, independently of their parents, unless such treatment is free. There may be some matters for which young people, especially teenagers, do not want to seek medical advice and treatment unless they can do so without involving their parents. Ready access to the Medicare system is important in such situations if these young people are to seek out appropriate medical assistance.

1.31 There are no legislative restrictions on the age at which a person can make use of the bulk-billing health care system. However, the Health Insurance Commission has an internal policy that allows only people aged 15 and above to hold a Medicare card in their own name. Young people below that age must usually use their family’s general Medicare card. There is some flexibility in the policy to allow people below 15 to hold their own Medicare cards in some situations, for example, young people who attend boarding schools or otherwise live away from home. However, most young people below the age of 15, who wish to see a medical practitioner and be bulk-billed, must take their family’s Medicare card. This may be awkward for them if they do not want their parents to know about the consultation.

1.32 Having said that, there is no legislative or administrative requirement that a patient actually present his or her Medicare card at the medical practitioner’s practice in order to be bulk-billed. All that is required is the patient’s Medicare number. A young person could, for example, copy out his or her Medicare number from the family Medicare card and present the number to the medical practitioner. There is also a Medicare “provider hotline” number which medical practices can telephone to obtain or confirm a particular patient’s Medicare number. In theory, therefore, a young person below the age of 15 could still make use of the Medicare system without involving his or her parents. However, many young people may not know that they can receive free health care without presenting their Medicare card to the medical practitioner. Moreover, it may be a business decision of the particular medical practice not to bulk-bill patients unless they present their Medicare card at the time of the consultation. Medical practices may also vary in their internal policies concerning the age at which they will allow patients to sign Medicare vouchers for themselves, rather than requiring a parent to sign on the child’s behalf.

1.33 Any reforms to the law which are aimed at providing young people with easier access to the health care system will be incomplete unless consideration is also given to possible changes to the Medicare system to allow young people to make greater use of the bulk-billing system independently of their parents. However, any such changes to Medicare can only be made at the federal level, and therefore lie beyond the scope of the NSW Law Reform Commission’s role. For this reason, the Commission does not discuss the Medicare system in any detail in this Issues Paper. We have simply raised it in this introductory chapter as a matter that will impinge, in a practical way, on any reforms that we ultimately recommend.

DEFINITIONS

1.34 The terms of the Commission’s reference turn on several key words and phrases:

• “minor”;
• “parents and guardians”;
• “consent”;
• “medical treatment”; and
• “medical practitioners”.

“Minor”

1.36 “Minor” means a person from birth to age 18 (which is the age at which, in New South Wales, a person acquires the legal status of an adult).²⁹ When a person reaches the age of 18, he or she is completely free to consent to, or refuse, medical treatment, provided that he or she is not incompetent for some reason (other than age), such as mental incapacity. The Commission uses the term “young person” instead of “minor” in this Issues Paper, as “young person” is more commonly used in everyday language, whereas “minor” tends to be a more legalistic term.

“Parents and guardians”

1.37 This phrase refers to any person or people who stand in the legal position of a parent to a young person, whether they be the natural parents, the adoptive parents or have been appointed the young person’s legal guardians.³⁰ This definition does not include other people who may take on a role in raising a child, but who do not have any legal status as a parent or legal guardian of that child, for example, a grandparent or other member of the young person’s extended family. In Chapter 4, at para 4.4-4.5, the Commission discusses the question of whether people other than parents should have a legal right to participate in making decisions about the medical care of a young person.

“Consent”

1.38 What is meant by “consent” in the context of providing medical treatment to young people? The few legislative provisions in New South Wales dealing with consent in relation to young people’s medical treatment do not provide any definitions of the term, “consent”.³¹ The common law has developed a notion of consent arising out of an (adult) patient’s right to self-determination or autonomy: each person has a right to be free of unwanted bodily contact and to decide whether such contact should occur. Medical treatment is usually³² only lawful if the adult patient has agreed, or consented, to it, in the exercise of his or her right to personal autonomy.³³ The absence of consent has particular legal ramifications: medical practitioners who carry out medical treatment involving bodily contact without a legally valid consent (where such is required) are potentially liable in tort for trespass to the person, either as a battery, an assault or false imprisonment. In this way, the law has developed a notion of consent, as it relates to medical treatment, as the assent, or agreement, to physical contact that is necessary in order to obviate an action in trespass, in recognition of each person’s right to personal autonomy. The patient must be advised in broad terms of the nature of the treatment and agree to it.³⁴

1.39 “Consent” relating to medical treatment has a different shade of meaning when the courts talk of a patient’s “informed consent” to particular medical treatment. “Informed consent” is an American term³⁵ which the Australian High Court has criticised as a misleading way to describe a medical practitioner’s duty to disclose to a patient the material risks of a particular medical procedure.³⁶ A risk is material, and therefore required to be disclosed to the patient, if a reasonable person, in the patient’s position, would attach significance to it, or if the medical practitioner is, or should reasonably be, aware that the particular patient would be likely to attach significance to it. Failure to disclose all the material risks of a particular treatment does not affect the validity of the consent given by the patient to the treatment, although the High Court has recognised that, in reality, a patient’s choice to undergo, or not undergo, treatment is meaningless unless it has been made on the basis of all relevant information and advice. Instead, a medical practitioner’s failure to disclose signifies a breach of his or her duty of care owed to the patient. Failure to disclose, or obtain “informed consent”, therefore, gives rise to liability in negligence, not in trespass.

1.40 In the law relating to the medical treatment of young people, the distinction is blurred between the notion of consent as an agreement to contact necessary to obviate an action in trespass, and “informed” consent as a decision made following disclosure of all material risks. In Marion’s case,³⁷ the High Court endorsed a test aimed at assessing a young person’s competence to consent to medical treatment, based upon whether the young person understood the nature and consequences of the treatment. This test was applied to assess the validity of the young person’s consent, as used in the first sense of the word, that is, to determine whether there was a legally recognisable agreement to contact necessary to avoid liability, on the medical practitioner’s part, in trespass.³⁸ At the same time, the majority of the High Court spoke of a young person’s competence to give “informed consent”,³⁹ rather than simply competence to consent, and the test put forward to determine that competence seems to include elements from the notion of “informed” consent, as used in the second sense of the word, that is, an agreement following disclosure of the material risks of the proposed treatment. Certainly, the requirement for a young person to understand not just the nature of the proposed treatment, but also its consequences, appears to place a greater burden on the extent of the young person’s understanding in order to be deemed competent to give a valid consent, and on the amount of information disclosed by the medical practitioner in order to obtain a valid consent to avoid liability in trespass, than ordinarily applies in the case of treating adult patients.

1.41 The end result is that, when dealing with young people’s medical treatment, the law is not clear in its definition of consent, appearing to merge, to some extent at least, the two meanings of consent which it otherwise keeps distinct in the context of medical treatment for adult patients. Unlike adults, the consent of a young person necessary to avoid an action in trespass requires an agreement based not just on an understanding of the broad nature of the treatment, but also of the consequences of the treatment. Whether or not an understanding of the “consequences” amounts to an understanding of the “material risks”, as used in the concept of “informed consent”, is open to question. It is also open to question whether the information which a medical practitioner has a duty to disclose to a young patient, in order to avoid liability in negligence, differs in any way from the information which must be disclosed to an adult patient, given that the young patient must already be aware of, and understand, the “consequences” of the treatment in order to be considered competent to “consent” to it, so as to avoid a possible action in trespass.

1.42 One other point is worth noting in seeking to define the term, “consent”. In paragraph 1.38, the Commission referred to the historical development of the notion of consent, arising out of the courts’ recognition of people’s right to self-determination and autonomy. Medical treatment involving bodily contact was considered to infringe that right to personal autonomy, and to amount to a trespass, unless it had been consented to. The difficulty in this rationale for the practice of modern medicine is that not all types of medical treatment involve physical contact. For example, counselling, or the simple prescription of medication, does not necessarily involve any bodily contact. In such situations, what does it mean to require a patient’s “consent” to treatment? “Consent” as an agreement necessary to obviate an action in trespass has no real meaning in this context, because there is no physical trespass to the patient’s person. Is “consent” limited here to mean a decision based on full disclosure of the nature and the material risks of the treatment, so as to avoid liability, on the medical practitioner’s part, in negligence? In Chapter 8, the Commission discusses more fully the problems of traditional lines of liability for medical treatment that does not involve physical contact.

1.43 Having highlighted here the blurring of the boundaries between “consent” and “informed consent” in the context of the medical treatment of young people, the Commission will tend to use “consent” in this Issues Paper as meaning the agreement that is necessary to make lawful what would otherwise be a trespass to a young person’s person. In considering the law relating to consent in this sense, we also consider the law relating to the refusal of medical treatment. At the same time, we are aware of and make continuing references to, the difficulties of distinguishing this notion of consent from the notion that is usually associated with the law of negligence, of an agreement based on the disclosure of all material risks.

“Medical treatment”

1.44 It is difficult to settle on a definition of “medical treatment”. The word “medical” normally connotes the involvement of a medical practitioner, or other paramedical professional, such as a nurse, in the performance of orthodox, mainstream medical procedures. Below are some examples, taken from various legislative provisions and proposed provisions, of this kind of narrow view of “medical” in the phrase, “medical treatment”:

“Medical treatment” means treatment or procedures administered or carried out by a medical practitioner in the course of medical or surgical practice or by a dentist in the course of dental practice and includes the prescription or supply of drugs.⁴⁰

“Medical treatment” includes any medical or surgical procedure, operation, or examination, and any prophylactic, palliative, or rehabilitative care normally carried out by or under the supervision of a medical practitioner.⁴¹

“Health care” means treatment by a qualified medical or dental practitioner in the course of his practice, and includes … treatment given by any person pursuant to directions given in the course of practice by a qualified medical or dental practitioner …⁴²

“Medical treatment” means:

(i) treatment by a medical practitioner in the course of the practice of medicine or surgery, or

(ii) treatment by any person pursuant to directions given in the course of the practice of medicine or surgery by a medical practitioner.⁴³

… care provided to young people by all those who profess to be in the business of improving or maintaining the health of others.⁴⁴

“Health care” means any care, treatment, advice, service or goods provided in respect of the physical or mental health of a person.⁴⁵

1.47 There does not seem to be any neat, obvious way in which to define the phrase, “medical treatment”. At this stage, the Commission has decided to adopt a narrow interpretation of “medical” as a starting point to open the way for public discussion and consultation. In this Issues Paper, therefore, we use the term “medical treatment” to apply to services provided by registered medical practitioners or under the ultimate supervision of a registered medical practitioner. We are fully aware that there are other sorts of services that are aimed at providing a benefit to a person’s health and for which the issue of who has a right to consent is also controversial. However, given that the terms of reference specifically speak of “medical” treatment and “medical practitioners”, and given that this Issues Paper represents only the preliminary stage of discussion of this area, we have chosen to begin with a narrow view of the phrase. We are inclined to expand the definition of “medical treatment” beyond a focus on services provided by medical practitioners, or those working under medical practitioners, and we would be interested in your suggestions as to how “medical treatment” should be defined. Issue 1.2 below invites your comments on this point.

1.48 As for the meaning of “treatment”, we have chosen, at this stage, to include all the sorts of services that medical practitioners provide. This includes treatment requiring no physical contact, such as the provision of advice, information or counselling, and also includes treatment that might not strictly be considered to cure or alleviate an injury or illness. However, at least at this stage, the Commission has decided not to include within the concept of “treatment” any procedures that form part of a clinical trial or medical research. While medical research ultimately aims to benefit the health of its recipients and the community at large, we consider it to be something broader than the notion of “treatment” as that term is used in the terms of reference. However, we are aware that there are issues of concern relating to young people and consent to medical research; at present, uncertainties in the law may be having a stultifying effect on the advancement of medical research, and may also be resulting in many drugs being available on the market the effects of which have not been properly tested on children. It is an area which the Commission may need to revisit upon further community consultation.

“Medical practitioners”

1.49 Following on from the Commission’s preliminary interpretation of the phrase, “medical treatment”, we have taken a fairly narrow view of the phrase “medical practitioners” to refer only to persons registered as a medical practitioner under the Medical Practice Act 1992 (NSW). However, as we noted in paragraph 1.47 above, we adopt these narrow definitions of “medical treatment” and “medical practitioner” as starting points only, and welcome suggestions for preferable ways of defining them.

Issue 1.1

Do you agree, or disagree, with the following definitions of key words and phrases in the Commission’s terms of reference?

• “Minor”: A person from birth to age 18. (See paragraph 1.36)
• “Parents or guardians”: Any person or people who stand in the legal position of a parent to a young person, whether it be the natural parent, the adoptive parent, or the legal guardian. (See paragraph 1.37)
• “Consent”: The agreement that is necessary to make lawful what would otherwise be a trespass to a young person’s person, and includes the notion of refusal of medical treatment. (See paragraph 1.38-1.43)
• “Medical treatment”: Any service provided by a registered medical practitioner, or under the ultimate supervision of a registered medical practitioner. (See paragraph 1.44-1.48)
• “Medical practitioner”: Any person registered as a medical practitioner under the Medical Practice Act 1992 (NSW). (See paragraph 1.49)
Issue 1.2

How should the terms “medical treatment” and “medical practitioners” be defined in the context of a discussion of young people’s right to make decisions about their medical care?

1.50 This Issues Paper adopts the following structure.

1.51 Chapter 2 summarises the current law, both common law and statutory provisions, determining when young people can legally consent to, and refuse, medical treatment themselves.

1.52 Chapter 3 puts forward suggestions for reform of the current law governing young people’s competence to make their own medical decisions. It discusses various alternative tests for determining when a young person can consent to and refuse medical treatment.

1.53 Chapter 4 discusses the law governing consent to, and refusal of, medical treatment for young people who are not legally competent to consent or refuse themselves. It focuses particularly on the role of parents in making decisions about their child’s medical care.

1.54 Chapter 5 discusses the law governing when a medical practitioner can legally treat a young person without consent, that is, without either the consent of the young person, his or her parents, or some other third party, such as a court or tribunal.

1.55 Chapter 6 discusses the legal framework for making decisions about medical care for young people with mental illnesses and/or intellectual disabilities.

1.56 Chapter 7 discusses the legal framework for making decisions about medical care for other groups of young people who also have special needs, namely young people in out-of-home care, homeless young people, young people from non-English speaking backgrounds, young people who are Aboriginal or Torres Strait Islander, and young people whose parents are not competent to make medical decisions.

1.57 Chapter 8 sets out the various grounds of legal liability for medical practitioners who treat young people without a legally valid consent, where such consent is required by law, and the protection that is currently offered to medical practitioners in such situations.

1.58 Chapter 9 discusses issues concerning patient confidentiality that arise when a medical practitioner treats a person below the age of 18.

1.59 Chapter 10 considers the need for consolidation or codification of the law relating to the consent or refusal of medical treatment for young people.

1.60 Each chapter contains issues which relate to the discussion specific to that chapter, and which invite your response.

1. There is no single, uniform definition of the term, “adolescent”. Agencies and organisations dealing with teenagers have adopted various definitions. For example, the World Health Organisation defines an “adolescent” as a person between the ages of 10 and 19, that is, someone in the second decade of life: see World Health Organisation, “Adolescent health and development” in “Overview of child and adolescent health” (as at 28 April 2004) «http://www.who.int/child-adolescent-health/OVERVIEW/AHD/adh_over.htm». The Adolescent Clinics at The Children’s Hospital at Westmead define an “adolescent” as a person between the ages of 12 and 16: see The Children’s Hospital at Westmead, “Adolescent clinics” (as at 28 April 2004) «http://www.chw.edu.au/prof/clinics/adolescent_clinics.htm». For the purposes of our discussion, the Law Reform Commission has not defined “adolescence” according to a particular chronological age, but rather as the time characterised by the physical, and accompanying emotional and mental, changes of puberty, and limited to those young people below the age of 18, that is, below the age of full legal capacity as an adult.

2. For example, the English case which settled the current common law test for a young person’s competence to consent, Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, involved a dispute about whether or not teenage girls could consent to receiving contraceptive advice and prescription for the Pill. Other cases have involved, for example, treatment of young people with anorexia nervosa (see Director General, NSW Department of Community Services v Y and Z, Parents of X [1999] NSWSC 644; Re W (a minor) (medical treatment) [1992] 4 All ER 627) and termination of pregnancy (see K v Minister for Youth and Community Services; Re Infant “K” (1982) 8 Fam LR 250).

3. See NSW Centre for the Advancement of Adolescent Health, Access to health care among NSW adolescents: Phase 1 (Research Report, Sydney, 2002) at 23-25 and, generally, D Bennett and L Rowe, What to do when your children turn into teenagers (Doubleday, Sydney, 2003).

4. According to figures from the 1998 National Survey of Mental Health and Wellbeing, in 1998, 47% of females aged 13-17 were exercising to control weight, 26% were dieting to control weight, and 3% of females in this age group were vomiting or using laxatives to lose weight: see L Moon, P Meyer and J Grau, Australia’s young people: their health and wellbeing 1999 (Australian Institute of Health and Welfare, Canberra, 1999); Australian Bureau of Statistics, “Selected risks faced by teenagers” Australian social trends (Commonwealth of Australia, Canberra, 2002) at 61. It has been estimated that, in females in the “at risk” age group of 15 to 20, anorexia nervosa affects between one and two of every 1,000: T Bartholomew and S Paxton, “General practitioners’ perspectives regarding competence and confidentiality in an adolescent with suspected anorexia nervosa: legal and ethical considerations” (2003) 10 Journal of Law and Medicine 308 at 316. Anorexia nervosa has been noted as the third most common chronic illness in Australian adolescents (after obesity and asthma), particularly prevalent in young women, but with increasing prevalence in young men: see D Bennett and L Rowe, What to do when your children turn into teenagers (Doubleday, Sydney, 2003) at 324.

5. In 1998, the Australian Institute of Health and Welfare carried out a survey, the National Drug Strategy Household Survey: see P Adhikari and A Summerill, 1998 National drug strategy household survey: detailed findings (Drug Statistics Series No. 6, Australian Institute of Health and Welfare, Canberra, 1999). According to the survey, the drugs most commonly reported as available by adolescents between the ages of 14 and 19 years were: alcohol (82%), tobacco (69%), marijuana (48%), and painkillers (40%). 33% of males in that age group, and 27% of females, were reported to drink alcohol on at least one day per week; 16% of both males and females smoked nicotine daily, or on most days; 45% of both males and females in that age group had tried marijuana. The 2001 survey revealed similar results: one in five teenagers (aged 14-19) smoked tobacco in 2001, with 15.1% smoking daily; one in three males and one in four females aged 14-19 consumed alcohol weekly; and more than one third of teenagers aged 14-19 had used illicit drugs: see Australian Institute of Health and Welfare, 2001 National Drug Strategy Household Survey – First Results (Drug Statistics Series No 9, Canberra, 2002).

6. For example, in 1995, the Commonwealth government developed the National Youth Suicide Prevention Strategy, and allocated government funding specifically to the Strategy for the period 1995-1999. The Strategy aimed to provide a coordinated approach to youth suicide prevention throughout Australia, and set up a number of programs to achieve its goals: see Australian Department of Health and Ageing, Mental Health and Special Programs Branch (as at 28 April 2004) «www.mentalhealth.gov.au/sp/nysps/about.htm». In Australia, in 1998, there were 446 deaths from suicide in the 15-24 years age group, and young men comprised 364 of these deaths. For young men aged 15-19, the rate of suicide in this year was 17.2 per 100,000, and for young women aged 15-19, it was 5.5 per 100,000. It is estimated that the overall suicide rate among Aboriginal and Torres Strait Islander communities may be four times higher than in the non-indigenous population: see P Mitchell, Valuing young lives: evaluation of the National Youth Suicide Prevention Strategy (Australian Institute of Family Studies, Commonwealth of Australia, 2000) at 24-26.

7. See D Bennett and L Rowe, What to do when your children turn into teenagers (Doubleday, Sydney, 2003) at 299.

8. Of course, some pre-pubescent children may face problems more usually associated with adolescents, such as alcohol and substance abuse.

9. For a discussion of the literature in this area, see, for example, L Bunney, “The capacity of competent minors to consent to and refuse medical treatment” (1997) 5 Journal of Law and Medicine 52 at 60-61; A Newman, “Adolescent consent to routine medical and surgical treatment: a proposal to simplify the law of teenage medical decision-making” (2001) Journal of Legal Medicine 501 at 518-520; P Parkinson, “Children’s rights and doctors’ immunities: the implications of the High Court’s decision in Re Marion” (1992) 6 Australian Journal of Family Law 101 at 106.

10. See J Piaget and B Inhelder, The psychology of the child (Basic Books, New York, 1969). See also E Susman, “Participation in biomedical research: the consent process as viewed by children, adolescents, young adults and physicians” (1992) 121 Journal of Pediatrics 547.

11. L A Weithorn and S B Campbell, “The competency of children and adolescents to make informed treatment decisions” (1983) 9 Child Development 285.

12. Competence was assessed according to capabilities for: inferential understanding, factual understanding, reasoning, reasonable outcome and evidence of choice.

13. See M McCabe, “Involving children in medical decision making: developmental and clinical considerations” (1996) 21 Journal of Pediatric Psychology 505 at 509.

14. See L Roberts, “Informed consent and the capacity for voluntarism” (2002) 159 American Journal of Psychiatry 705.

15. See T Grisso and L Vierling, “Minors’ consent to treatment: a developmental perspective” (1978) 9 Professional Psychology 412.

16. See P Alderson, Children’s consent to surgery (Open University Press, Buckingham, 1993) at 193; G Koocher and D de Maso, “Children’s competence to consent to medical procedures” (1990) 7 Pediatrician 68.

17. E Cauffman and L Steinberg, “The cognitive and affective influences on adolescent decision-making” (1995) 68 Temple Law Review 1763 at 1788.

18. See Chapter 2 and 4 for a more detailed discussion of this legislation.

19. See Chapter 2.

20. Of course, that assumption does not apply when the adult patient’s capacity to understand is somehow impaired, for example, by reason of an intellectual disability.

21. See Re T (adult: refusal of medical treatment) [1992] 4 All ER 649; Re B (adult: refusal of medical treatment) [2002] 2 All ER 449.

22. “Child” is defined in the Convention as a person aged below 18: see Art 1. The Convention was ratified by Australia on 17 December 1990.

23. See Art 5.

24. United Nations Committee on the Rights of the Child, General Comment No. 4: Adolescent health and development in the context of the Convention on the Rights of the Child (CRC/GC/2003/4, 2003).

25. United Nations Committee on the Rights of the Child at para 32.

26. United Nations Committee on the Rights of the Child at para 33.

27. The specific provisions of the Convention on the Rights of the Child have not been formally made part of our domestic law. Australian law recognises the rights enshrined in the Convention in so far as the Commonwealth Attorney General declared, on 22 December 1992, that the Convention on the Rights of the Child was an international instrument relating to human rights and freedoms for the purpose of s 47 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). That declaration came into effect on 13 January 1993, and is still in force: Commonwealth of Australia Gazette (No. GN 1, 13 January 1993) at 85-107.

28. See the functions of the Human Rights and Equal Opportunity Commission, set out in s 11 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), specifically s 11(1)(e), (f), (g), (j) and (k). Section 11 of the Act requires the Commission to monitor (to a limited extent) Australia’s compliance with certain “human rights”. “Human rights” are defined in s 3 of the Act to include rights recognised or declared by any “relevant international instrument”, which in turn is defined in s 3 as an instrument declared under s 47 of the Act. The Convention on the Rights of the Child is an international instrument declared to be an international instrument according to s 47: see Commonwealth of Australia Gazette (No. GN 1, 13 January 1993) at 85-107.

29. See Minors (Property and Contracts) Act 1970 (NSW) s 9.

30. For legislation regulating the adoption of children and/or appointment of legal guardians, see Adoption Act 2000 (NSW) Pt 9; Children and Young Persons (Care and Protection) Act 1998 (NSW) s 79, Ch 10 (appointment of Children’s Guardian for children and young people in out-of-home care); Guardianship Act 1987 (NSW) s 9 forward (applies to young people aged 16 and over, in certain circumstances); Family Law Act 1975 (Cth) s 61D, 64B, 64C; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 4(1); see also cases asserting the preservation of the parens patriae jurisdiction of the NSW Supreme Court to make orders regarding the welfare of children: eg Director-General, NSW Department of Community Services v Y [1999] NSWSC 644 (Austin J); Re Jessica [2001] NSWSC 1207 (Hamilton J).

31. There is no definition of “consent” in the Minors (Property and Contracts) Act 1970(NSW), Children and Young Persons (Care and Protection) Act 1998(NSW) or Guardianship Act 1987(NSW). Similarly, the South Australian legislation, which regulates young people’s competence to consent to medical treatment, does not define the term “consent”: see Consent to Medical Treatment and Palliative Care Act 1995 (SA). There is, however, legislation in British Columbia, Canada, which deals with the ability of young people to consent to medical treatment and defines “consent” in terms of requiring the health care provider to explain, and be satisfied that the young person understands, the nature and consequences, and the reasonably foreseeable benefits and risks, of the health care: see Infants Act RSBC 1996 c. 223 s 17.

32. For situations in which medical treatment may be lawfully carried out without either the patient’s or his or her parent’s consent, see Chapter 5.

33. See Re T (Adult: refusal of medical treatment) [1992] 4 All ER 649; Re W (a minor) (medical treatment) [1992] 4 All ER 627 (CA); Marion’s case (1992) 175 CLR 218 at 222-223; see also L Bunney, “The capacity of competent minors to consent to and refuse medical treatment” (1997) 5 Journal of Law and Medicine 52 at 54; D Mendelson, “Historical evolution and modern implications of concepts of consent to, and refusal of, medical treatment in the law of trespass” (1996) 17 Journal of Legal Medicine 1 at 1-2.

34. See Rogers v Whitaker (1992) 175 CLR 479.

35. See Canterbury v Spence 464 F. 2d 772 (D.C. Cir. 1972).

36. See Rogers v Whitaker (1992) 175 CLR 479.

37. See Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218. See Chapter 2 at para 2.7-2.14 for a discussion of Marion’s case.

38. See the majority in Department of Health and Community Services (NT) v JWB (Marion’s case) at 232-235.

39. See, for example, Department of Health and Community Services (NT) v JWB (Marion’s case) at 237, 239, 240, 250. See L Bunney, “The capacity of competent minors to consent to and refuse medical treatment” (1997) 5 Journal of Law and Medicine 52 at 54-55.

40. Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 4.

41. Guardianship Act 1987 (NSW) s 33.

42. Alberta Institute of Law Research and Reform, Consent of Minors to Health Care (Report, 1975) Recommendation 9.

43. Minors (Property and Contracts) Act 1970 (NSW) s 49(4).

44. Queensland Law Reform Commission, Consent to Health Care of Young People (Report 51, 1996) at 17-18.

45. Health Care Liability Act 2001 (NSW) s 4(1).

46. Note the discussion of the distinction between “therapeutic” and “non-therapeutic” sterilisation in Marion’s case: Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218 at 250. See Chapter 4 at para 4.13 for further discussion.