• Overview
• The common law
• Section 49 of the Minors (Property and Contracts) Act 1970
• Best interests as a paramount consideration
• Part 5 of the Guardianship Act 1987
• Refusing medical treatment

OVERVIEW

2.1 This chapter sets out the current law governing the circumstances in which young people can consent to, and refuse, medical treatment.

2.2 As a general rule,¹ a medical practitioner cannot treat an adult (that is a person above 18 years of age) without a valid consent from the patient. Without such consent, the medical practitioner may face liability for, at the least, trespass to the person.² An adult’s consent is only valid if he or she is competent to consent. The law generally considers adults to be competent to consent, unless it can be shown that a particular individual’s capacity to understand is affected in some way, for example, by reason of mental illness or an intellectual disability. The law relating to the ability of young people to consent to medical treatment is much more complex.

2.3 In New South Wales, the current law determining a young person’s competence to consent to medical treatment is found in rules derived from:

• the common law;
• s 49 of the Minors (Property and Contracts) Act 1970 (NSW); and
• Part 5 of the Guardianship Act 1987 (NSW) (for young people aged 16 and over).

2.5 There are other sources of rules affecting young people’s competence to consent that apply in particular circumstances. These are discussed in other chapters of this Paper. They include:

• The Children and Young Persons (Care and Protection) Act 1998 (NSW), which has provisions relating to emergency treatments, special medical treatments, children in need of care and protection and young people in out-of-home care.⁵
• The Mental Health Act 1990 (NSW), which applies to young people with mental illnesses in psychiatric hospitals.⁶
• The Human Tissue Act 1983 (NSW), which relates to consent to the donation from a young person’s body of specified regenerative tissue for the purpose of transplantation to the body of a parent, brother or sister of the young person.⁷
• Section 67ZC of the Family Law Act 1975 (Cth), which deals with the Family Court’s jurisdiction to make orders relating to the welfare of young people.⁸

THE COMMON LAW

The Gillick-competence test

2.7 A young person under 18 years of age is legally competent to consent to medical treatment if he or she is capable of understanding the nature and consequences of that treatment. The High Court of Australia settled this common law test for determining a young person’s competence in a case commonly known as Marion’s case. The majority of the Court held that:

A minor is capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.¹⁰

2.8 The test focuses on an assessment of the individual young person’s level of maturity and understanding in relation to the treatment proposed. This means that, before the age of 18 (when a young person legally becomes an adult), there is no fixed age at which it is possible to say, in advance of such an assessment, that a young person is automatically capable of consenting to medical treatment generally, or to specific types of medical treatment. Thus, while a young person of, say, 10 years of age may have the necessary intelligence and understanding of what is proposed to consent to the administration of a course of antibiotics to treat a sore throat, he or she may not, at the same time, possess sufficient understanding to consent to the removal of his or her tonsils in the case of acute tonsillitis. In short, before the age of majority, competence to consent operates on a continuum which ranges from the point at which a young person is clearly able to consent to the medical treatment proposed to that at which he or she is clearly unable to do so.

2.9 The test may prove difficult for medical practitioners, with whom the assessment of Gillick-competence initially rests, to apply in practice. The imprecision of the test places a significant onus on that assessment.¹³ Medical practitioners sued for providing medical treatment to a young person without consent bear the onus of proving that they believed that the young person was of sufficient maturity and understanding to consent to the treatment in question.¹⁴

2.10 The justification for the Gillick test is that it accords with experience and psychology in recognising that the point at which a young person has capacity to consent to particular medical treatment varies with each individual and cannot be constrained artificially by a fixed-aged test.¹⁵ Further, the flexibility of the test allows the law to develop in accordance with social experience.¹⁶ And the heavy responsibility that the test places on medical practitioners is acceptable because the responsibility is in the hands of a “learned and highly trained profession regulated by statute and governed by a strict ethical code which is vigorously enforced”.¹⁷ Lord Scarman said in Gillick:

The truth may well be that the rights of parents and children in this sensitive area are better protected by professional standards of the medical profession than by “a priori” legal lines of division between capacity and lack of capacity to consent since any such general dividing line is sure to produce in some cases injustice, hardship and injury to health.¹⁸

2.11 The High Court, in Marion’s case, did not elaborate on the level of understanding a young person must possess to be considered competent to consent to specific medical treatment. The majority of the Court stated merely that the young person should understand “fully what is proposed”, without explaining how to judge that understanding.

2.12 In Gillick, Lord Scarman, referring to a young person’s ability to access contraceptive advice, stated that it would not be enough that the young person understood the nature of the advice given: he or she must also have a sufficient maturity to understand what is involved.¹⁹ This emphasis on maturity to understand the nature and effects of proposed treatment has been stressed in subsequent cases.²⁰ Indeed, in the context of contraceptive advice, Lord Scarman was of the view that:

There are moral and family questions, especially [the young person’s] relationship with her parents; long-term problems associated with the emotional impact of pregnancy and its termination; and there are risks to health of sexual intercourse at her age, risks which contraception may diminish but cannot eliminate. It follows that a doctor will have to satisfy himself that she is able to appraise these factors before he can safely proceed upon the basis that she has at law capacity to consent to contraceptive treatment. And it further follows that ordinarily the proper course will be for him … first to seek to persuade the girl to bring her parents into consultation, and if she refuses, not to prescribe contraceptive treatment unless he is satisfied that her circumstances are such that he ought to proceed without parental knowledge and consent.²¹

2.13 In contrast, Lord Fraser, in Gillick, said that a young person can consent to medical treatment if he or she understands what is proposed and is capable of expressing his or her own wishes.²³ Lord Fraser did not expressly require a capacity to understand the moral and emotional ramifications of the contraceptive treatment in issue in that case. However, Lord Fraser pointed out that the young person’s right to consent is subject to the medical practitioner’s judgment as to whether or not the medical treatment is in the young person’s best interests.²⁴

2.14 When considering possible reforms to the way in which young people’s competence to consent is determined, any proposals for reform of the Gillick-competence test may need to spell out the level of understanding that is required for the young person to be deemed competent. This is an issue that is considered as part of the discussion of possible legal reforms in Chapter 3.

SECTION 49 OF THE MINORS (PROPERTY AND CONTRACTS) ACT 1970

2.15 In New South Wales, the common law test that determines a young person’s competence to consent according to the individual’s level of maturity is subject to s 49 of the Minors (Property and Contracts) Act 1970 (NSW), which provides:

(1) Where medical treatment or dental treatment of a minor aged less than sixteen years is carried out with the prior consent of a parent or guardian of the person of the minor, the consent has effect in relation to a claim by the minor for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, the minor were aged twenty-one years or upwards and had authorised the giving of the consent.

(2) Where medical treatment or dental treatment of a minor aged fourteen years or upwards is carried out with the prior consent of the minor, his or her consent has effect in relation to a claim by him or her for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, he or she were aged twenty-one years or upwards.

(3) This section does not affect:


(a) such operation as a consent may have otherwise than as provided by this section, or

(b) the circumstances in which medical treatment or dental treatment may be justified in the absence of consent.


(4) In this section:

dental treatment means:


(i) treatment by a dentist registered under the Dentists Act 1934 in the course of the practice of dentistry, or

(ii) treatment by any person pursuant to directions given in the course of the practice of dentistry by a dentist so registered, and


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.

2.16 The purpose of s 49 is to provide limited protection from civil liability to “persons acting with reasonable care and consent” (usually medical practitioners) in the treatment of young people.²⁵ It states that such a person cannot be sued in battery or assault for treating a young person, if the person obtains consent from:

• the young person’s parent or guardian if the young person is aged below 16; or
• the young person if the young person is aged 14 or over.

A person on or over 16 years of age may make decisions about his or her own medical treatment as validly and effectively as an adult.

Issue 2.1

Should medical practitioners be offered a broader protection from civil and criminal liability when treating young people than that currently offered by s 49 of the Minors (Property and Contracts) Act 1970 (NSW)?

2.18 The relationship between s 49 and the common law is subject to a number of differing interpretations. In discussing that relationship, it is essential to bear in mind two factors. First, s 49 was enacted more than twenty years before the Gillick test of young people’s competence to consent to medical treatment was accepted by the High Court in Marion’s case. Secondly, s 49(3)(a) stipulates that s 49 does not affect the operation that consent otherwise has. Thus the common law remains relevant to the operation of consent except in so far as s 49(1) and (2) apply.

2.19 The interaction of s 49 and the common law needs to be considered in relation to the medical treatment of:

• young people below 14 years of age.
• young people aged 14 years and over;
• young people below 16 years of age; and
• young people aged 16 and over.

2.20 Section 49 makes no specific mention of young people below the age of 14. For young people in this age group, the common law (as expounded in Marion’s case) must operate to determine their competence to consent to the particular medical treatment proposed.

Young people aged 14 and over

2.21 Section 49(2) provides that a medical practitioner is protected from civil liability for battery or assault for treating a young person aged 14 and over if the young person consents to the treatment. If the young person is Gillick-competent, the subsection is merely confirmatory of the common law. But what if the young person is not Gillick-competent? Does the subsection provide an immunity from liability in battery or assault to a medical practitioner who has treated a “consenting” young person above the age of 14 even if the young person does not understand fully what is proposed?

2.22 A reading of the subsection, as well as some English case law,²⁸ suggests an affirmative answer to this question, which gives s 49(2) an operation independent of the common law. However, this interpretation of the subsection is open to doubt for at least three reasons. First, the English case law is concerned with the interpretation of a statute that is differently structured and worded to that in New South Wales.²⁹ Secondly, the subsection assumes that the young person’s consent is validly given or effective, and this merely begs the question of capacity to consent that is addressed in Gillick and Marion. Thirdly, and as already noted, the purpose of the section is to provide a limited defence to civil liability, not to confer a general capacity to consent on young people aged 14 and over.³⁰

2.23 These doubts suggest a second interpretation: that s 49(2) merely confirms that young people aged 14 and over have the ability to consent to medical treatment, provided that they are Gillick-competent.³¹ On this view, a medical practitioner could not rely on the consent of a young person aged 14 and over for protection from liability unless the young person is Gillick-competent. If so, s 49(2) would appear to add nothing to the common law.

Issue 2.2

Does s 49(2) of the Minors (Property and Contracts) Act 1970 (NSW) offer any additional protection from liability for medical practitioners than that already provided by the common law?

2.24 Section 49(1) allows a parent or a guardian to consent to the medical treatment of a young person who is below 16 years of age as if the young person were 21 years of age and had authorised the giving of consent. Such consent has effect in relation to a claim by the young person for assault or battery in respect of anything done in the course of the treatment. Clearly, if the young person is not Gillick-competent, s 49(1) adds nothing to the common law.

2.25 On the other hand, if the young person is Gillick-competent, s 49(1) does qualify the common law if, as seems to be the case,³² the rule at common law is that the authority of a parent with respect to particular medical treatment comes to an end once the young person achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. The effect of s 49(1) is then to confer a power on the parent or guardian the power that they would not otherwise have to consent to the medical treatment of a Gillick-competent young person, the consent operating as a defence to any claim in battery or assault brought by the young person in respect of anything done in the course of the treatment.

2.26 An alternative, but probably minority, view of the common law, supported by Justice Deane in Marion’s case,³³ is that a young person’s achievement of Gillick-competence does not necessarily result in the young person’s parents losing the power to consent to medical treatment on behalf of the young person. If so, there would be a “transitional period” in which the ability to consent to the treatment of a young person is shared between that person and his or her parents. Section 49(1) would, on this view, add nothing to the common law. Indeed, the common law would be wider than s 49(1) since, at common law, the power of parents or guardians to consent to the medical treatment of Gillick-competent young persons is limited neither to young persons below the age of 16 nor to the context of actions for assault and battery.

Issue 2.3

Does s 49(1) of the Minors (Property and Contracts) Act 1970 (NSW) offer any additional protection from liability for medical practitioners than that already provided by the common law?

Young people aged 16 and over

2.27 The common law and s 49(2) are both capable of application to persons aged 16 and over. In addition, young people aged 16 and over may be subject to the provisions of the Guardianship Act.³⁴ There are also special procedures to which only a court, or another body, such as the Guardianship Tribunal, can consent. These situations are discussed in Chapter 4.

Overlapping rights of young persons and their parents

2.28 Section 49(1) of the Minors (Property and Contracts) Act 1970 (NSW) and, on one view, the common law seem to allow for the simultaneous existence and operation of parents’ and young people’s rights to consent to medical treatment, but only in the case of the legislation where the young person is aged below 16 years of age.³⁵ The coexistence of these rights obviously presents no problem in so far as the young person fully understands particular types of treatment (to which he or she may therefore consent) but not others (to which his or her parent must consent).

2.29 However, s 49(1) also creates the possibility that a parent may consent to medical treatment to which the young person is also competent (in the Gillick sense) to consent. In such cases, the consent of either the parent or the competent young person exonerates the medical practitioner (or other defendant) from liability in battery or assault in respect of the treatment in question.³⁶ It is important to appreciate that s 49(1) does no more than this. In particular, it probably does not give the parents a veto on the consent of the young person (or vice versa).³⁷ Rather, where a Gillick-competent young person’s attitude to consent to particular medical treatment differs from that of his or her parents who are also competent to consent to that treatment, the conflict will be resolved in one of the following ways:

• by the medical practitioner exercising professional judgment to refuse treatment or to administer treatment relying on either the consent of the parent or young person;
• by an application by an interested person for a judicial determination of whether or not the treatment is in the young person’s best interests;³⁸
• ultimately, by the ability to administer treatment against the wishes of the young person after such a judicial determination.³⁹

2.31 It is, however, arguable that, in such cases, a preferable course is simply to allow the wishes of the Gillick-competent young person to prevail over those of his or her parents. This would seem to be the position at common law.⁴² Gillick suggests that once young people have sufficient maturity to consent to the medical treatment proposed, their parents’ right to consent to medical treatment on their behalf ceases.⁴³ In Gillick, Lord Scarman said that:

[P]arental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child … as a matter of law, the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.⁴⁴

Issue 2.4

Should young people and their parents have coexisting rights to consent to the medical treatment of the young person? If so, in what circumstances?

2.32 A court, exercising its parens patriae or welfare jurisdiction, can always make decisions for the benefit of young people under 18 years of age. The young person’s best interests are objectively ascertained.⁴⁶

2.33 The Commission has already pointed out that a parent of a young person under 18 years of age can consent to the medical treatment of that person where he or she is not Gillick-competent⁴⁷ and, with more limited effect, where the young person is under the age of 16 and Gillick-competent.⁴⁸ While it may be assumed that parents exercise their authority in this respect in the best interests of the child, it is clear that parental authority is not absolute and may be overridden by a court acting in the young person’s best interests both where the person is not Gillick-competent⁴⁹ and where he or she is.⁵⁰

2.34 The same is true where a young person under 18 years of age has himself or herself consented to medical treatment. The court can override that consent whether the person is Gillick-competent or not.⁵¹ This is because the court has a welfare or parens patriae jurisdiction in respect of young people. That jurisdiction is exercised in the best interests of young people, and (while generally supervisory of the exercise of the care and control of young people by parents and guardians) is wider than the powers of a parent.⁵² In practice, the cases involving decisions about a young person’s medical treatment that have come before the courts have been concerned with young people who refuse to give consent. It is clearly the law that a court can override a young person’s refusal to give consent to medical treatment where the refusal is not in the young person’s best interests.⁵³

PART 5 OF THE GUARDIANSHIP ACT 1987

2.35 A separate set of rules appears to govern consent to medical treatment for people, aged 16 and over, who are incompetent to consent themselves and are covered by Part 5 of the Guardianship Act 1987 (NSW). As a whole, the Guardianship Act 1987 deals with adult people⁵⁴ who are not competent to make decisions themselves about aspects of their lives, if, for example, they suffer from a disability that requires them to be cared for or supervised. However, Part 5 of the Guardianship Act 1987, dealing with consent to medical (and dental) treatment, is not restricted to people suffering from a disability. It expressly applies to any person, 16 and over, who is incapable of understanding the general nature and effect of the proposed treatment, or is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.⁵⁵ A 16 year old could, theoretically at least, come within the scope of Part 5, if he or she were incapable of understanding the nature and effect of the treatment, not because of a disability, but because of his or her immaturity (although it may be unlikely that a young person of this age, with average abilities and intelligence, would be found too immature to understand the issues in question).

2.36 Consequently, the following framework governs consent to treatment for young people aged 16 and over:

• If a young person aged 16 or above is incapable of understanding the nature and effect of the proposed medical treatment, that young person is brought within the framework of Part 5 of the Guardianship Act 1987 (NSW). Among other things, Part 5 specifies the people who can then consent to medical treatment on the young person’s behalf.
• Young people aged 16 and above who are capable of understanding the general nature and effect of the treatment in question do not come within the scope of Part 5. Consequently, the common law rules apply to them: as they are capable of understanding the nature and effect of the proposed treatment, they will be legally competent to consent to the treatment themselves, following the common law test set out in Gillick.
• Part 5 of the Guardianship Act 1987 does not deal with the right to refuse medical treatment. The common law rules governing a young person’s right to refuse treatment, as discussed below,⁵⁶ apply equally to young people aged 16 and above.

2.37 Part 5 of the Guardianship Act 1987 (NSW) provides a legislative framework for consent to the medical treatment of people, aged 16 and over (including adults), who are not capable of consenting themselves. The framework applies to a “patient” who is of or above the age of 16 years, and “who is incapable of giving consent to the carrying out of medical or dental treatment.”⁵⁷ The legislation defines a person as incapable of giving consent if he or she is incapable of understanding the general nature and effect of the proposed treatment, or is incapable of indicating whether or not he or she consents, or does not consent, to the treatment being carried out.⁵⁸ The term “patient” is not defined in the Act. As noted above, it seems likely that, in most cases, those young people to whom Part 5 will apply will have an impairment or disability of some kind beyond mere immaturity, which will prevent them from giving personal consent. However, there is no reason to believe, on the wording of the legislation, that Part 5 is intended not to apply to young people who are incompetent simply because of their immaturity, however unlikely this scenario is.

2.38 The term “medical treatment” is defined in the Guardianship Act as “medical treatment (including 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”, but does not include a number of procedures, such as first-aid medical treatment and any non-intrusive examination made for diagnostic purposes.⁵⁹ Presumably, if there were any forms of medical treatment that did not fall within this legislative definition, Part 5 of the Guardianship Act would not apply, and instead the common law would operate to determine those people who could consent to the treatment in question.⁶⁰

2.39 For medical treatment that is covered by Part 5, the framework set up by the legislation divides medical treatment into three categories: minor treatment, major treatment and special treatment. “Minor treatment” is defined as treatment that is not special treatment or major treatment (or treatment in the course of a clinical trial).⁶¹ In general terms, “major treatment” is defined⁶² as treatment, not including special treatment, that involves:

• the administration of a long-acting injectable hormonal substance for the purpose of contraception or menstrual regulation;
• the administration of a drug of addiction;
• the administration of a general anaesthetic or other sedation, except in certain instances;
• treatment used for the purpose of eliminating menstruation;
• the administration of a restricted substance for the purpose of affecting the central nervous system, except in certain instances;
• treatment that involves a substantial risk (that is, more than a mere possibility) to the patient of death, brain damage, paralysis, permanent loss of function of an organ or limb, permanent and disfiguring scarring, exacerbation of the condition being treated, an unusually long period of recovery, a detrimental change of personality, or a high level of pain or stress;
• testing for HIV.

• treatment intended or reasonably likely to render the person permanently infertile;
• new treatment that has not yet gained the support of a substantial number of medical practitioners practising in the area;
• the administration of a drug of addiction over a period of more than 10 days in any period of 30 days, except in certain instances;
• treatment carried out for the purpose of terminating pregnancy;
• a vasectomy or tubal occlusion;
• treatment involving the use of an aversive stimulus.

2.42 In relation to special treatment, as defined in the legislation, consent for such treatment must generally be obtained from the Guardianship Tribunal before it can be carried out on a young person aged 16 to 18 to whom this legislative framework applies.⁶⁶ In deciding whether or not to consent to the medical treatment in question, the Tribunal must take into account a number of considerations, including the patient’s and the parents’ views.⁶⁷

2.43 There is provision within the framework set up in Part 5 for medical treatment to be carried out without consent, in situations of urgency, where the treatment amounts to a minor treatment and there is no parent, or the parent cannot be contacted or is unable to make a decision about consent, and the patient does not object to the minor treatment in question.⁶⁸

2.44 There are two limitations on the power of parents or guardians to consent to minor or major medical treatment under the Guardianship Act 1987 (NSW).⁶⁹ First, parents or guardians cannot give consent to treatment that is to be carried out for any purpose other than that of promoting or maintaining the health and well-being of the patient. Secondly, parents or guardians cannot give consent if the person carrying out or supervising the treatment is aware, or ought reasonably to be aware, that the patient objects to the carrying out of the treatment. This second limitation gives patients a power to veto a decision made on their behalf to have medical treatment carried out.

2.45 A patient’s objection to the medical treatment in question is to be disregarded if the patient has minimal or no understanding of what the treatment entails, and the treatment will cause no distress or reasonably tolerable and transitory distress, or if the Tribunal has authorised the medical treatment, despite the patient’s objection. The Tribunal can only override such an objection if it is satisfied that the objection is made because of the patient’s lack of understanding of the nature of, or reason for, the treatment.⁷⁰

2.46 In general, the practical effect of the separate regime under Part 5 of the Guardianship Act is the same as that of the rules applying to consent for young people aged below 16 who are incompetent to consent themselves. In both cases, it will usually be the young person’s parents who have the power to consent on their child’s behalf. However, there are several differences worth noting:

• Part 5 of the Guardianship Act constitutes a fairly cohesive regime which sets up mechanisms for the provision of medical and dental treatment for people aged 16 and over who are not competent to make decisions about their own medical care. It follows certain policy directions, namely to ensure that people within this group are not deprived of necessary medical and dental treatment, and that any medical treatment carried out is done for the purpose of promoting the person’s health and well-being.⁷¹ In contrast, there is no single cohesive framework governing consent to medical treatment for young people aged below 16. Instead, consent to the medical treatment of young people who are below 16 and who lack capacity to consent, is governed by a combination of the common law, s 49 of the Minors (Property and Contracts) Act 1970 (NSW), and the Children and Young Persons (Care and Protection) Act 1998 (NSW). Because of the piecemeal nature of the rules governing consent for under 16-year-olds, there is no overall policy approach to imposing restrictions on the power to consent for this group of young people.
• For young people aged 16 and over who lack capacity to consent, the Guardianship Tribunal can consent to any type of medical treatment (falling within the legislative definition), even if parents are also legally entitled to consent to that type of treatment. Therefore, if parents would not give their consent to a certain type of treatment, a medical practitioner could apply to the Guardianship Tribunal for its consent to the treatment, if the medical practitioner considered that it was in the young person’s best interests to do so. For young people below 16, there is no such express provision for the Guardianship Tribunal (or other body) to authorise medical treatment in situations where parents will not consent. However, the parens patriae jurisdiction of the Supreme Court gives that court the power to authorise medical treatment that is in the child’s best interests, even if the parents will not consent. It is likely too that the Family Court of Australia could hear such an application.⁷² These mechanisms are not as straightforward as those set up by Part 5.
• The types of treatment that are considered “special” and require tribunal authorisation, rather than a parent’s consent, are slightly different for people aged 16 and over than for people aged below 16. These are discussed in Chapter 4.
Issue 2.5

Should a different legal regime apply to young people aged 16 and over, than that which applies to young people below the age of 16, to determine when they can consent to or refuse medical treatment, and to determine who can consent to or refuse medical treatment on their behalf if they are not legally competent to make that decision themselves?

2.47 Neither s 49 of the Minors (Property and Contracts) Act 1970 (NSW) nor Part 5 of the Guardianship Act 1987 (NSW) deals expressly with a young person’s ability to refuse medical treatment. The matter is, therefore, generally governed by the common law.

2.48 For competent adults, the power to consent to treatment includes the right to refuse treatment. This right is premised on the right of each individual to autonomy and personal integrity. In the words of Justice Cardozo: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body”.⁷³ Hence, a competent adult has an absolute right to refuse medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death.⁷⁴ The rules that apply to young people under 18 years of age are, however, quite different.

2.49 First, the ability of parents to consent to the medical treatment of a young person can operate on that person’s refusal of medical treatment even where the young person is Gillick-competent. In R (A Minor) (Wardship: Consent to Treatment), the English Court of Appeal examined the issue whether a young person who has achieved a sufficient understanding and intelligence to enable him or her to understand fully the treatment that is proposed could refuse treatment. The Court was of the view that the refusal of treatment by a Gillick-competent young person, although an important factor in the medical practitioner’s decision whether or not to treat, did not hinder the ability of that young person’s parents to give an effective consent to that treatment.⁷⁵ This approach has since been reiterated in a number of English cases.⁷⁶ The approach is supported by s 49(1) of the Minors (Property and Contracts) Act 1970 (NSW) which, while not giving parents a veto on the consent to medical treatment of a Gillick-competent young person,⁷⁷ has the effect that the consent of a parent or guardian to the treatment of a Gillick-competent young person under 16 years of age provides a defence to an action in battery or assault where that young person has refused medical treatment.⁷⁸

2.50 Secondly, the court may become involved in its parens patriae jurisdiction. When a court is asked to authorise the medical treatment of a young person, it starts from the position that the young person’s opinion should be acted on unless the balance is strongly against this.⁷⁹ In practice, a young person’s wish not to undergo medical treatment may be overridden by the courts if:

• the young person lacks sufficient understanding to appreciate the consequences of the refusal; or
• the refusal is not in the young person’s best interests.

2.51 A young person’s refusal of medical treatment may be overridden if the young person is considered not to be Gillick-competent.⁸⁰ The courts approach the assessment of a young person’s competence to refuse treatment by analysing the young person’s capacity to comprehend and retain treatment information, to believe it and to weigh it in the balance to arrive at a choice.⁸¹

 

Case study A, a 15 year old boy, was hospitalised for leukaemia. Conventional treatment involved the administration of four drugs, which in turn necessitated the administration of blood transfusions from time to time. There was an 80% to 90% chance of full remission if this treatment were adopted. The child and his family were Jehovah’s Witnesses and it was contrary to their religion to permit blood transfusions. As the child, supported by his parents, indicated his refusal of a blood transfusion, the hospital adopted an alternative course of treatment, which gave a 60% chance of remission. Within two weeks, A’s condition had deteriorated to the extent that his life was threatened. The hospital sought the leave of the court to treat A as they considered necessary, including the transfusion of blood. One issue was whether A was of sufficient understanding and intelligence and maturity to give an informed refusal of the proposed treatment. The court found A of sufficient intelligence to be able to make decisions about his well-being and was impressed by his calm assertion that he would refuse treatment well knowing that he may die as a result. However, the court found that he did not have a full understanding of the whole implication of what the refusal of treatment involved. He did not have a sufficient understanding of the pain he had yet to suffer, of the fear he would be undergoing, of the distress not only occasioned by that fear but also – and importantly – the distress he would suffer as he, a loving son, helplessly watched his family’s distress. He might have some concept of the fact that he would die if untreated, but the court found that he did not have the ability to turn his mind to the manner of his death and the extent of his and his family’s suffering. The court held that A’s welfare dictated that the hospital be at liberty to treat him with the administration of further drugs and consequently with the administration of blood and blood products.82 Was the level of understanding, intelligence and maturity required in this case too high?

 
2.52 In assessing a young person’s competence, the court will take into account the extent to which that competence is affected by illness, medication, false assumptions, misinformation or by influence of another. Hence, the courts have held that anorexia nervosa is an illness that can affect a young person’s competence, providing a basis for overriding the young person’s refusal to consent to treatment.⁸³

The young person’s best interests

2.53 A court can override a young person’s refusal of medical treatment in its welfare jurisdiction.⁸⁴ The court’s discretion to override a young person’s refusal of treatment can be exercised only if the refusal is contrary to the young person’s best interests. Courts often use this discretion in circumstances where a refusal of treatment will in all probability lead to the death of the child or to severe or permanent injury.⁸⁵ The court can override a refusal of treatment, notwithstanding the fact that the child or young person is “Gillick-competent”.⁸⁶

 

Case study M, a 15 year old girl, suffered a heart failure. Despite medical treatment, her medical condition deteriorated to an extent that the medical practitioners concluded that the only course of action to save her life was heart transplantation. As she refused to give her consent to the operation, the hospital applied to the court for leave to carry out the operation. Below are extracts of the interview M had with a solicitor who acted on behalf of the court: “First knew I needed a transplant on Wednesday. I understand what a heart transplant means, procedure explained…checkups…tablets for the rest of my life. I feel depressed about that. I am only fifteen and don’t want to take tablets for the rest of my life…It’s all happened quickly…if I don’t get the operation I will die. I really don’t want a transplant – I am not happy with it - I don’t want to die. It’s hard to take it all in. I feel selfish. If I had the transplant, I wouldn’t be happy. If I were to die my family would be sad. If I had children and they were old enough my age, I would go with whatever is best – what they want I would not let them die. Death is final I know I can’t change my mind. I don’t want to die, but I would rather die than have the transplant and have someone else’s heart, I would rather die with fifteen years of my own heart. If I had someone else’s heart, I would be different from anybody else – being dead would not make me different from anyone else. I would feel different with someone else’s heart, that’s enough reason not to have a heart transplant, even if it saved my life. I don’t want to write the Judge a letter.” The solicitor who interviewed M expressed the view that she was an intelligent 15 year old whose wishes should carry considerable weight. However, he was also of the view that M felt overwhelmed by her situation and the decision she was being asked to make. The court noted the risks involved during and after a heart transplant operation. There was also a risk that M would harbour for the rest of her life a deep resentment of what had been done to her. However, those risks had to be balanced with the certainty of death if no operation was made. The court ruled that it was in M’s best interests to have a heart transplant operation.87

 
Issue 2.6

Should the law distinguish between the ability of young people, their parents or the courts to consent to the medical treatment of young people and to refuse to undergo such treatment?

1. See Chapter 5 for a discussion on the medical treatment of young people without consent.

2. See Chapter 8 for a discussion on the liabilities of medical practitioners.

3. See para 2.7-2.46.

4. See para 2.47-2.53.

5. See Chapters 4, 5, 6 and 7.

6. See Chapter 6.

7. See Chapter 4.

8. See Chapter 4.

9. See generally L Skene, Law and medical practice: rights, duties, claims and defences (2^nd edition, LexisNexis Butterworths, Sydney, 2004) Ch 4.

10. Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218 at 237-238 (Mason CJ, Dawson, Toohey, and Gaudron JJ).

11. [1986] AC 112.

12. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 188-189 (Lord Scarman).

13. Re Alex (Hormonal Treatment for Gender Identity Dysphoria) [2004] FamCA 297 (13 April 2004) at [155] per Nicholson CJ.

14. See, for example, L Skene, Law and medical practice: rights, duties, claims and defences (2^nd edition, LexisNexis Butterworths, Sydney, 2004) at para 4.19.

15. Marion’s case at 237-238.

16. Gillick at 191.

17. Gillick at 191.

18. Gillick at 191.

19. Gillick at 189 (Lord Scarman).

20. Re Alex at [168] (“grave nature and effects of proposed treatment”).

21. Gillick at 189.

22. 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 111.

23. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 169.

24. Gillick at 173-174 (Lord Fraser).

25. New South Wales Law Reform Commission, Infancy in relation to contracts and property (Report 6, 1969), Appendix G (Notes on Proposed Bill) at para 44; NSW, Parliamentary Debates (Hansard) Legislative Assembly, 11 August 1970 at 5275 (Assistant Minister’s Second Reading Speech to Minors (Property and Contracts) Bill). See also K v Minister for Youth and Community Services [1982] 1 NSWLR 311 at 321-322 (Helsham CJ in Eq).

26. The wording in subsections (1) and (2), “a claim … for assault or battery”, implies civil proceedings. Further, s 49 is part of an Act dealing predominantly with various civil acts and proceedings involving people below the age of 18.

27. Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 6.

28. Especially Re W (A Minor) [1993] Fam 64 at 77 (Gillick-competence presumed or irrelevant).

29. Family Law Reform Act 1969 (UK) s 8(1) (which avoids the “overlap” between ss 49(1) and (2) where the young person is between 14 and 16 years of age, and which says that an “effective consent” makes the consent of a parent or guardian unnecessary).

30. See para 2.16-2.17.

31. See Gillick v West Norfolk AHA [1986] AC 112 at 167 per Lord Fraser (Family Law Reform Act 1969 (UK) s 8(1) is “merely for the avoidance of doubt”).

32. See Marion’s case (1992) 175 CLR 218 at 237 per Mason CJ, Dawson, Toohey and Gaudron JJ (referring to Lord Scarman in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 184, 189); at 316-317 per McHugh J dissenting. See further para 2.31.

33. Marion’s case at 294 per Deane J (relationship between minor and parents will ordinarily pass through a transitional stage in which authority is shared). See also Re R [1991] Fam 11 at 22-25; Re W (A Minor) [1993] Fam 64 at 74-79; Re S [1995] 1 FCR 604.

34. See para 2.35-2.46.

35. See para 2.24.

36. Especially in Re R [1991] Fam 11 at 22-25; Re W [1993] Fam 64 at 74-79 (though the statements are, strictly, obiter dicta).

37. Especially in Re R [1992] Fam 11 at 23; Re W [1993] Fam 64 at 83-84. The dicta of Helsham CJ in Eq in K v Minister for Youth and Community Services [1982] 1 NSWLR 311 at 321 are to the contrary.

38. See especially K v Minister for Youth and Community Services [1982] 1 NSWLR 311; Re R [1991] Fam 11; Re W (A Minor) [1993] Fam 64; and the cases on refusal at para 2.53. On the ability of the courts to interfere to protect the young person’s best interests, see para 2.32-2.34.

39. See Re B [1997]1 FCR 618.

40. See para 3.41-3.42.

41. See para 2.32-2.34.

42. This position may conflict with the “alternative” view of the common law identified in para 2.26.

43. L Skene, Law and medical practice: rights, duties, claims and defences (2^nd edition, LexisNexis Butterworths, Sydney, 2004) at para 4.26-4.27.

44. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 184, 188 – 189 (Lord Scarman).

45. Marion’s case (1992) 175 CLR 218 at 237. See also at 316-317 (McHugh J dissenting). But see at 294 (Deane J).

46. Marion’s case at 240, 316

47. See para 2.20-2.27.

48. See para 2.24.

49. Re Alex [2004] Fam CA 297 (13 April 2004) at [153]. Consider also Re Elizabeth (1989) 96 FLR 248.

50. K v Minister for Youth and Community Services [1982] 1 NSWLR 311. Consider also Re E [1992] 2 FCR 219; Re S [1995] 1 FCR 604 (in both of which the court indicated that it would have overridden the young person’s refusal to consent had the young person been Gillick-competent, effectively also overruling the parent’s wishes).

51. See Re W (A Minor) [1993] Fam 64 at 84 (point 6)(Lord Donaldson MR). And consider Re Alex at [173].

52. Marion’s case at 258-259.

53. See para 2.53.

54. A guardianship order may be made under the Guardianship Act 1987 in respect of a person aged 16 and above: see s 9(2).

55. Guardianship Act 1987 (NSW) s 33(2).

56. See para 2.47-2.53.

57. Guardianship Act 1987 (NSW) s 34(1)(b).

58. Guardianship Act 1987 (NSW) s 33(2).

59. Guardianship Act 1987 (NSW) s 33(1).

60. Section 46(5) of the Guardianship Act 1987 (NSW) provides that the Guardianship Tribunal, a person responsible or a guardian, can consent to medical treatment expressly excluded from the definition of that term in the same way as they can consent to treatment falling within the legislative definition. However, it does not make any provision for consent to treatment that is not expressly excluded from the definition, but simply does not come within the definition.

61. Guardianship Act 1987 (NSW) s 33(1).

62. See Guardianship Act 1987 (NSW) s 33(1); Guardianship Regulation 2000 (NSW) cl 8.

63. Guardianship Act 1987 (NSW) s 33(1); Guardianship Regulation 2000 (NSW) cl 6.

64. Guardianship Act 1987 (NSW) s 36, 33A(2), 33.

65. Guardianship Act 1987 (NSW) s 36(1)(b). Part 5 also provides for consent to be given to “clinical trials”, and generally requires that the Guardianship Tribunal give such consent: see s 45AA, 45AB.

66. Guardianship Act 1987 (NSW) 36(1)(b). There is provision in s 36(2) for the guardian of a patient to consent to the carrying out of continuing or further special treatment if the Tribunal has previously given consent to this. The Commission discusses these provisions relating to special treatment in Chapter 4 at paragraph 4.21-4.22.

67. Guardianship Act 1987 (NSW) s 44.

68. Guardianship Act 1987 (NSW) s 37.

69. Guardianship Act 1987 (NSW) s 46.

70. Guardianship Act 1987 (NSW) s 46A.

71. See Guardianship Act 1987 (NSW) s 32.

72. See para 4.24.

73. Schloendorff v Society of New York Hospital (1914) 105 NE 92 at 93.

74. Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 at 904-905 (Lord Templeman); Re T (Adult: Refusal of Treatment [1992] 2 FLR 458 at 460 (Lord Donaldson MR).

75. In re R (A Minor) (Wardship: Consent to Treatment) [1991] WLR 592 at 601 (Lord Donaldson MR). The young person in this case was, however, found not to be Gillick-competent.

76. See Re W (A Minor) [1993] Fam 64 at 81 (Lord Donaldson MR); Re S (A Minor) (Refusal of Medical Treatment) [1995] 1 FCR 604 at 608-609 (Johnson J); Re C (Detention: Medical Treatment) [1997] 2 FLR 180; Re B (A Minor) (Treatment and Secure Accommodation) [1997] 1 FCR 618 at 628-629 (Cazalet J).

77. See para 2.29.

78. See Re W (A Minor) [1993} Fam 64 at 84; Re K, W and H (Minors) (Medical Treatment) [1993] 1 FLR 854. The position at common law is unclear: consider para 2.25-2.26, 2.31.

79. Re S (A Minor) (Refusal of Medical Treatment) [1995] 1 FCR 604.

80. Re W (A Minor) [1993] Fam 64; Re S (A Minor) (Refusal of Medical Treatment) [1995] 1 FCR 604; Re B (A Minor) (Treatment and Secure Accommodation) [1997] FCR 618; Re C (Detention: Medical Treatment) [1997] 2 FLR 180.

81. Re C (Refusal of Medical Treatment [1994] 1 FLR 31 at 36 (Thorpe J). This case, which involved an adult, has been applied to minors: see Re B (A Minor) (Treatment and Secure Accommodation) [1997] FCR 618 at 625 (Cazalet J).

82. Re E (A Minor) (Wardship: Medical Treatment) [1992] 2 FCR 219. See also Re S (A Minor) (Refusal of Medical Treatment) [1995] 1 FCR 604.

83. Re W (A Minor) [1993] Fam 64 at 81 (Lord Donaldson MR).

84. Re W (A Minor) [1993] Fam 64 at 81 (Lord Donaldson MR); Re M (Medical Treatment: Consent) [1999] 2 FLR 1997.

85. Re W (A Minor) [1993] Fam 64 at 88 (Balcombe LJ).

86. In re R (A Minor) (Wardship: Consent to Treatment) [1991] WLR 592 at 602 (Lord Donaldson MR). The minor in this case was, however, found not to be Gillick-competent.

87. Re M (Child: refusal of medical treatment) [1999] 2 FCR 577.