• Should young people be able to make decisions about their own medical care?
• Choosing a model to decide competence
• The right to refuse medical treatment: should different rules apply?
• Treating certain types of conditions
• Treatment requiring court authorisation

3.1 Chapter 2 summarises the current law governing the legal competence of a person below 18 to consent to, or refuse, medical treatment for himself or herself. The current law is, arguably, unclear and uncertain in a number of respects, lacking a considered and coherent policy direction. Rather than providing a general framework by which to determine young people’s competence, the current law has much more specific aims and limited scope.

3.2 In this chapter, the Commission considers various models for legal reform that could be adopted to replace or build upon the existing law. These models would aim to replace what is a fairly piecemeal area of the law with a more cohesive framework that reflects a particular policy stand as regards the rights and interests of young people, their families and the medical profession.

3.3 The models for reform that are discussed below vary in their policy positions, as well as the extent to which they seek to replace and reform the existing law. Ultimately, the decision whether or not to replace the current law, and the particular model that is chosen to replace it, should depend on the policies on which the model is based, and its workability in practice.

SHOULD YOUNG PEOPLE BE ABLE TO MAKE DECISIONS ABOUT THEIR OWN MEDICAL CARE?

3.4 Should a person below 18 be able to consent to, or refuse, his or her own medical treatment? This question is fundamental to any discussion of possible legal reform and the response that is considered most appropriate will guide the direction that such reform will take.¹

3.5 There are at least three grounds for arguing that young people should, in some situations at least, be considered legally competent to consent to and refuse medical treatment:²

• Some young people may be capable of maturing and developing to a degree that they can, and should, be considered to have the capacity of adults to understand and make decisions about their own health care.
• The law in this area should be in line with the modern view of children as young people with rights, including a right to their own bodily integrity and a right to control, or at the least to participate in, decisions affecting their bodies. The perception of children as “chattels” of their parents or their father, over whom parents may exercise complete control, is outmoded and inappropriate.
• It is in young people’s best interests to allow them ready access to health care and treatment when needed. In some instances, particularly for matters relevant to adolescent health, young people may not seek medical assistance if they have to involve their parents in the process. It may be necessary to recognise as valid the young person’s consent in order to treat him or her.

Issue 3.1

In what situations, if any, should young people be able to make their own decisions about their medical care?

3.7 The Commission puts forward below five possible tests, or models, for deciding when a young person should be considered legally competent to consent to, or refuse, a particular type of medical treatment. We have set out the basic principles of each model and raised issues of concern about each. We are interested in your comments, both generally about each model and about the specific issues raised. A table, summarising the features of each model, as well as its advantages and disadvantages, appears in Appendix A, to help you compare and weigh up the options. As well, there may be other models that we have not considered and that have merit as a means of determining when a young person should be able to give personal consent or refusal to medical treatment. We welcome your suggestions for other such models.

3.8 In considering possible options for reform, it may be helpful to imagine how each model would apply in practice to assess a young patient’s legal competence. Here are some situations in which the question of whether young people should be able to consent to treatment may provoke various responses and to which the application of the models suggested below may prove to be more, or less, workable than the existing law:

• A young woman wishes to have cosmetic surgery performed, such as a breast enlargement.
• A young person seeks treatment for depression, including counselling and prescription of anti-depressants.
• A young person suffering from leukaemia wishes to decide for himself or herself the treatment program, rather than allowing his or her parents to decide.
• A young woman seeks a prescription for the Pill.

3.9 It is questionable whether a young person’s right to refuse medical treatment should be treated separately and differently from the right to consent, and whether a different legal framework should govern any such right to refuse. The Commission considers this question below, at paragraph 3.35-3.43. For the moment, the five suggested models for reform that follow are formulated in terms of deciding both whether a young person can consent to and refuse treatment. It may be that these models are ultimately considered appropriate only as a means of determining the issue of consent and that different rules are considered desirable to apply to determining if and when a young person can give a valid refusal of medical treatment.

Model One: Assess consent according to each young person’s capacity to understand

“Understanding the nature and possible consequences”

3.10 This model encapsulates the common law approach to deciding competence to consent, as reflected in the Gillick test.³ It determines legal competence to consent on an individual, case-by-case basis: a young person may give a valid consent or refusal if he or she is capable of understanding the nature and possible consequences of the treatment. It allows the treating medical practitioner to judge the maturity of each individual and recognises that young people mature at different rates, with varying degrees of understanding about different types of treatment.

3.11 This model has several variations. A young person could give a legal consent or refusal to medical treatment if:

• the treating medical practitioner were satisfied that the young person understood the nature and possible consequences of the treatment;⁴ or
• the treating medical practitioner were satisfied that the young person understood the nature and possible consequences of the treatment and the medical practitioner were satisfied that the treatment was in the young person’s best interests;⁵ or
• the treating medical practitioner were satisfied that the young person understood the nature and consequences of the treatment, where there was a presumption of maturity over a specified age, such as 13, and the possibility of maturity under that age if it could be proved to the medical practitioner’s satisfaction;⁶ or
• the treating medical practitioner were satisfied according to one of the above tests, and that opinion was supported by written approval from a second medical practitioner.⁷

3.12 What do we mean by “understanding” the nature and possible consequences of a particular type of treatment? Should this test for competence require simply that a young person reach a certain level of cognitive development to appreciate the procedure that is involved or is there some higher level of understanding that should be required? Is a single test for competence possible in view of the variety of medical procedures that might be the subject of consideration in any particular situation? The Commission has already noted⁸ that the current common law is not clear about the level of understanding that a young person must demonstrate under the Gillick test in order to be legally competent to consent to medical treatment: should the young person have to demonstrate a high level of understanding, so as to be able to exercise a “wise choice”, understanding not just the nature of the treatment proposed, but also the moral, emotional and family ramifications of the treatment, or should he or she only have to demonstrate a lower level of understanding, one which considers simply the nature of the medical treatment proposed? Should the young person demonstrate not only the cognitive skills to make an intelligent choice about the proposed treatment, but also have the social or emotional maturity to make a “voluntary” decision, reasonably free from influences such as pressure from peers, the desire to conform or to defer to authority?⁹

3.13 For instance, in the example outlined in paragraph 3.8 of the young woman seeking cosmetic surgery, should she be considered legally competent to consent to the surgery if she has the cognitive skills to understand the procedure and the risks involved? Should the treating medical practitioner also be questioning her level of social and emotional maturity, and her ability to decide independently of a normal adolescent preoccupation with body image and conformity with peers? Is it possible to identify, with any real certainty, a particular point in a young person’s development as the threshold past which that young person should be considered legally competent to make decisions about health care?

3.14 It has been suggested¹⁰ that guidelines should be formulated to help medical practitioners assess young people’s capacity to understand in a clear, consistent manner, with reference to specified and clearly articulated criteria. The use of guidelines would, firstly, provide the medical profession with an objective standard to enable them to assess young people consistently; and secondly, ensure that medical practitioners provide objective, behaviourally based observations of any incapacitations of a particular patient, which would then be available for subsequent scrutiny by, for example, a court.

Issue 3.2

(a) Should the law assess a young person’s competence to consent to medical treatment in terms of the individual young person’s understanding of the nature and possible consequences of the proposed medical treatment, as put forward in Model One of the Commission’s Options for Reform?

(b) Is there a more appropriate formulation of the test put forward in Model One? For example, should the focus be more on the reasoning process by which the young person reaches a decision about treatment, with an assessment of his or her ability to consider and weigh up various alternatives?

(c) Should the law spell out the level of understanding that a young person must demonstrate in order to be competent according to the test put forward in Model One and, if so, how?

(d) Would it be helpful to prescribe guidelines by which the treating medical practitioner can assess the individual patient’s degree of understanding under this test?

3.15 Model One carries the risk that a medical practitioner will make a mistake about an individual patient’s level of maturity. As we noted in the paragraph above, it may not be easy in practice to identify a point at which a young person can be said to pass a specified threshold of maturity to make him or her legally competent to make a decision about a particular medical matter, and it is a question on which medical practitioners might reasonably disagree. There are other factors that might also affect a medical practitioner’s ability to make a fair assessment of a young person’s competence, such as the medical practitioner’s own cultural values and his or her exposure to and experience in treating young patients. The medical practitioner’s judgment may go unchallenged or may not be challenged until after the consequences of that judgment have been felt.

Issue 3.3

(a) Does Model One of the Commission’s Options for Reform place too much discretion in the medical practitioner’s hands and too much faith in the medical practitioner’s ability to assess the young person’s level of maturity?

(b) Does Model One place too much emphasis on the young person’s right to autonomy at the risk of exposing him or her to the consequences of a detrimental decision?

Issue 3.4

(a) Could a requirement for a second medical opinion in Model One of the Commission’s Options for Reform become simply a “rubber stamp”, where approval is granted as a matter of course?

(b) Would such a requirement place too great a burden on medical practitioners, particularly in more isolated, rural areas, to seek a second opinion?

(c) Would such a requirement discourage young people from seeking medical treatment if they knew that the details of their consultation were likely to be disclosed to another medical practitioner?

Issue 3.5

(a) Is it practical to include a safeguard in Model One of the Commission’s Options for Reform that gives an “interested person” a right to challenge a medical practitioner’s decision about competence in court?

(b) Is there any way in which parents, and other interested people, could be made aware of a medical practitioner’s decision before the medical treatment is carried out without compromising the medical practitioner’s duty of confidentiality to the young person?

(c) Could a provision, which allowed parents and others to challenge a medical practitioner’s assessment of competence, discourage young people from seeking medical assistance?

(d) Are there other safeguards that could be included in Model One, which would be effective in limiting the power vested in the individual medical practitioner in determining a young person’s competence to consent or refuse?

3.18 The second variation of this test includes a welfare provision. That is, the medical practitioner must be satisfied that the treatment in question is in the young person’s best interests before relying on the (competent) young person’s consent, or refusal.

Issue 3.6

(a) If a young person is sufficiently mature to understand the nature and consequences of the medical treatment proposed, should that be enough to validate his or her consent, or refusal, according to Model One of the Commission’s Options for Reform?

(b) Is a qualification justifiable that requires young people’s decisions about their medical care to be in their own best interests before their consent or refusal becomes legally valid?

(c) If a young person’s legal competence to consent, or refuse, is made subject to that consent or refusal being in his or her best interests, how are those best interests to be determined, and by whom?

3.19 In Chapter 1,¹³ the Commission referred to two legal doctrines relating to the notion of consent to medical treatment. The first requires a patient’s legally valid consent in order to negate what would otherwise amount to a trespass to the person; the second requires that a patient’s consent be based on an informed decision, following a disclosure by the medical practitioner of all the material risks involved in the proposed treatment. In general, at least in the context of treating adult patients, it seems that a consent is legally valid to avoid liability in trespass if it is given by a competent patient who understands the general nature of the procedure that is proposed. Failure to disclose all the material risks to the patient does not invalidate the patient’s consent so as to give rise to liability in trespass, but instead exposes the medical practitioner to possible liability in negligence.

3.20 The Commission noted in Chapter 1 that in the current law governing young people’s competence to consent to medical treatment, there appears, to some extent at least, a convergence of these two doctrines. Under the Gillick test, a young person is competent to consent to treatment, so as to negate what would otherwise be a trespass, if he or she understands the nature and the possible consequences of the treatment. Presumably, this would require the treating medical practitioner to disclose not only the general nature of the treatment, but also its possible consequences, including the risks inherent with the procedure. It is not clear how this impacts, if at all, on a medical practitioner’s duty to disclose all material risks so as to avoid liability in negligence.

3.21 Model One adopts, to a great extent, the common law test for assessing a young person’s competence under the Gillick test. If this model is determined to be the preferred option, it may be desirable to consider how it is to interact with the notion of “informed consent” in the law of medical negligence.

Issue 3.7

How is Model One of the Commission’s Options for Reform to be distinguished from the notion of “informed consent” in the law of medical negligence? Should a medical practitioner be required to disclose the “material risks” of a particular type of medical treatment in order to be satisfied of a young person’s competence to consent?

3.22 This model fixes a general age at which a young person is considered legally competent to consent to or refuse medical treatment. All young people of that age are then able to give personal consent or refusal, without the need to obtain parental approval of that decision (unless incapacitated for some reason other than minority, such as an intellectual disability). All young people under that fixed age require their parents’ consent, or authorisation from the State, to obtain medical treatment, and their parents generally have sole right to refuse medical treatment for them, subject to the courts’ power to intervene. This general rule could be made subject to certain exceptions. For example, different rules could apply to decisions about treating certain types of medical conditions, as discussed at paragraph 3.27-3.29 below.

3.23 This model¹⁴ has the advantage of certainty for medical practitioners. It removes any discretion from the medical practitioner to make a judgment about the maturity of an individual patient. It avoids the risk that a medical practitioner will sometimes make mistakes in assessing a young person’s competence to consent, and that young people with insufficient understanding may consequently consent to health care without their parents’ knowledge or guidance. The model does not allow for the possibility that certain individuals may be mature enough to make a decision about their health care at a younger age. It also carries the risk that young people below the cut-off age will be deprived of medical treatment because they do not want to consult with their parents about the medical condition in question. This model gives priority to the need to protect immature young people from making detrimental decisions over the desire to give mature young people the right to autonomy and proper access to health care.

Issue 3.8

(a) Is there any greater likelihood of error in assessing legal competence using a fixed age test, as in Model Two of the Commission’s Options for Reform, than in a test that requires the treating medical practitioner to make a judgment about the maturity of an individual patient, as in Model One?

(b) Are concerns about denying young people below the cut-off age proper access to health care adequately met by formulating a list of medical procedures to which a person younger than the cut-off age can consent as exceptions to the general, fixed age rule?

(c) If Model Two were adopted, what would be an appropriate age to fix as the cut-off age? The most common choice in other jurisdictions is 16, although some jurisdictions have fixed the age at 14.¹⁵

3.24 This model combines an age-based test and a capacity-based test. Young people over a certain age can give a valid consent or refusal to medical treatment if the treating medical practitioner is satisfied that they understand the nature and consequences of the treatment. Young people under that age cannot give a valid consent or refusal, and medical practitioners cannot generally treat them without the parents’ consent.

3.25 Here is one formulation of this approach:

• Young people aged 16 and over can legally consent to medical treatment as if they were adults.
• Young people between 12 and 15 can legally consent to medical treatment if they understand the nature and consequences of the treatment. The young person’s consent is still valid even if one or both parents object to or refuse the treatment. Parents of a child between 12 and 15 can legally consent to medical treatment for their child. Their consent is still valid even if the child objects to or refuses the treatment, except for certain types of treatment that cannot be performed over the young person’s objection, such as termination of pregnancy.
• Young people under 12 cannot legally consent to, or refuse, their own medical treatment. Medical practitioners can generally treat a child under 12 if the child’s parents consent to the treatment and the treatment is in the best interests of the child.

Issue 3.9

(a) Does Model Three of the Commission’s Options for Reform find a suitable balance between young people’s right to autonomy, parents’ interests in protecting and guiding their children and the State’s responsibility to protect its young?

(b) Is Model Three too complicated to be workable in practice?

3.27 This model determines a young person’s legal competence to give personal consent or refusal, according to the type of medical treatment that is in question. For example, the law could stipulate that a young person, of any age, could give a personal consent to, or refusal of, treatment in respect of one or more of the following:

• contraception;
• termination of pregnancy;
• pregnancy-related health care;
• sexually transmitted diseases;
• drug or alcohol abuse;
• mental health services.

3.29 This model could operate either as a principal test for deciding legal competence, or in addition to a principal test. For example, legal competence to consent could be judged according to a fixed age test (or any other of the models discussed), with the additional provision that a young person of any age could give personal consent to treatment for one of a list of prescribed conditions. The issue here is whether there are certain types of treatment to which a young person of any age should always be able to give a personal consent or refusal, for public policy reasons, regardless of whatever other rules apply generally to decide legal competence to consent. The Commission gives separate consideration to this question at paragraphs 3.44-3.54 below.

Issue 3.10

Should the type of medical treatment in issue determine a young person’s ability to consent to, or refuse, medical treatment, either as a principal or a subsidiary test for legal competence? If so, which types of treatment should a young person be automatically considered competent to consent to, or refuse?

3.30 According to this model, young people can make their own decisions about their health care if they fall within one of a list of categories, such as:

• young people who are married or living in a de facto relationship;
• young people who are themselves parents;
• young people who live apart from their parents and manage their own financial affairs;
• homeless young people.

Issue 3.11

(a) Should any or all of the following groups of young people, as listed in Model Five of the Commission’s Options for Reform, be considered competent to consent to or refuse medical treatment, regardless of whether they meet the criteria in any general test for assessing legal competence?

• Young people who are married or living in a de facto relationship;
• Young people who are parents;
• Young people who live apart from their parents and manage their own financial affairs;
• Young people who are homeless.




(b) Are there any other groups of young people who should always be able to give personal consent or refusal to medical treatment?

(c) Should these groups of young people be able to consent to or refuse medical treatment as if they were adults, or should there be an additional requirement that the medical practitioner consider the treatment in question, or refusal of that treatment, to be in the patient’s best interests?

3.32 It may be that no single model of the five set out above is considered suitable as the sole means of deciding a young person’s legal competence to consent. Instead, each model may contain features that are considered useful as indicators by which to assess competence. Ultimately, the model that is chosen may be a collection of indicators from all, or some, of these models.

Issue 3.12

(a) Are there any other models for reform that are not included in the five models set out in Chapter 3, which might be effective in determining young people’s legal competence to make decisions about their medical care?

(b) Which, if any, features, or indicators, of the five models listed in Chapter 3, would you consider useful to retain in any alternative model for reform?

3.33 Consideration needs to be given to the role that parents should play within any proposed model for reform to the law governing young people’s right to consent to and refuse medical treatment. The current law in New South Wales is unclear on the interaction between parents’ and young people’s rights to consent, and how to resolve possible conflict between a parent and child.¹⁶

3.34 It may be desirable to clarify the role and rights of parents in participating in decisions about their children’s medical care once their children are legally competent to consent to, and refuse, medical treatment themselves. Should parents retain power to make medical decisions on their child’s behalf in this situation or should any such power cease as soon as their child becomes legally competent to make those decisions? This question has already been raised in Chapter 2, in Issue 2.4, and the Commission invites your response.

THE RIGHT TO REFUSE MEDICAL TREATMENT: SHOULD DIFFERENT RULES APPLY?

3.35 As the Commission noted in Chapter 2, at paragraphs 2.47-2.53, it is not clear whether, under current law, a mature young person has a right to refuse medical treatment in the same way as he or she has a right to consent to it.

3.36 Should a person under 18 have a right to refuse medical treatment and, if so, when should he or she be able to do so? The following are controversial situations in which these questions may arise:

• A young person with anorexia refuses treatment for the disease.
• A young person with a mental illness or behavioural disorder refuses treatment, in particular refuses prescribed medication.
• A young person suffering from substance addiction refuses treatment, including counselling.
• A young woman refuses to terminate her pregnancy.
• A young person refuses a particular treatment that is preferred by the treating medical practitioner and/or parents, and chooses a different treatment option.

3.38 The question of a young person’s right to refuse also highlights problems in maintaining patient confidentiality when treating young people. Where a young person refuses treatment that the medical practitioner considers to be in his or her best interest, and the parents are unaware of the young person’s health problem or condition, can and should the medical practitioner breach patient confidentiality to inform the parents of the young person’s refusal? This is an issue that is discussed in Chapter 9.¹⁷

Reason for recognising a right to refuse

3.39 The main reason for recognising a young person’s right to refuse medical treatment is straightforward. If young people are judged to be sufficiently mature, according to whatever test of maturity is formulated, why should they not be able to refuse medical treatment in the same way that a mature young person is able to consent to medical treatment and in the same way that an adult has a right to refuse treatment? If the law recognises the rights of adults to bodily integrity and control over their own health care, it is discriminatory and unjustifiably paternalistic to deny the same rights to young people who have the mental capacity to make rational decisions for themselves.

Reasons for rejecting a right to refuse

3.40 The following are possible reasons for denying young people a right to refuse medical treatment.

3.41 In most cases, the provision of medical treatment is aimed at benefiting a young person and the refusal of such treatment would be considered, at least in the eyes of the general public, to be to the young person’s detriment. If the primary motivation in recognising young people’s right to consent to medical treatment is to allow them better access to health care, that same concern does not apply to allow them a right to refuse treatment and in fact argues against such a right. At the beginning of this chapter, the Commission referred to three grounds for justifying a young person’s right to consent: recognition of young people’s ability to mature; recognition of their right to bodily integrity and control over their own health care; and a desire to allow them ready access to medical care. A legal framework that denies young people a right to refuse medical treatment gives priority to the third consideration over the first two considerations.

3.42 It may also be argued that the level of maturity that is needed to appreciate what is involved in refusing medical treatment is different from, and possibly higher than, the level of maturity required in consenting to treatment.¹⁸ Is the reasoning process of the average adolescent, for example, able to appreciate fully the long-term consequences of a decision to refuse treatment?

3.43 Of course, instead of rejecting altogether a young person’s right to refuse, a different test, or a more stringent test, could apply to deciding a young person’s capacity to refuse treatment than the test to decide his or her capacity to consent to it. Whether it would be practical or workable to have two different tests operating at the same time is open to question. The Commission has already asked, in Issue 2.6, whether young people should ever be considered legally competent to refuse medical treatment. Issue 3.13 seeks your views on the test that should be applied to determine competence to refuse, assuming a right to refuse should be afforded.

Issue 3.13

(a) Assuming that young people should be considered in some situations legally competent to refuse medical treatment, should the same test apply to decide a young person’s legal competence to refuse as the test to determine competence to consent to treatment?

(b) If a different test should apply, how should a test to determine competence to refuse be formulated?

3.44 In paragraph 3.27-3.29, the Commission discussed a possible model for deciding consent (and possibly refusal) according to the type of medical condition that was involved. We noted that this model could be used as the primary model for deciding a young person’s competence to consent to medical treatment, or as a model additional to another primary model. The fundamental question is whether, regardless of whatever general test is used to decide legal competence to consent and/or refuse, there are certain types of conditions for which a young person should always have the right to refuse or consent to treatment, without the need to obtain a parent’s consent or support.

3.45 We have already suggested a list of conditions and treatment that might fall within this special category of cases. These are:

• contraceptive advice and prescription (excluding permanent or long-lasting forms of contraception);
• sexually transmitted diseases;
• drug and alcohol abuse;
• mental health services;
• termination of pregnancy; and
• pregnancy-related health care.

3.46 In relation to these four conditions and treatment, it could be said that it is in both the interests of the young person and of the general community to allow a young person ready access to treatment, and that a young person of any age should be able to consent to such treatment without first obtaining parental authorisation. Should young people of any age, who are sexually active, have access to contraception, both for their own well-being, in preventing unwanted pregnancies, and for the sake of the community, which may indirectly share the costs of raising an unplanned child? The Commission does not intend to include within this list those forms of contraception that are permanent or long-lasting, such as sterilisation or injectable hormones. These types of medical procedures currently require special authorisation from a court or tribunal and we consider them separately in Chapter 4.

3.47 It is in the interests of the community, as well as the individual, to treat a sexually transmitted disease to prevent further infection. It can also be argued that a young person of any age who suffers from substance addiction should be able to seek treatment for that addiction for his or her own welfare, as well as the interests of the community in reducing the incidence of substance addiction and social problems that follow such addiction.

3.48 Perhaps more controversially would be to allow young people of any age ready access to mental health treatment, without the requirement first to obtain parental consent (and perhaps even without parents’ knowledge). Certainly, there is a strong argument for allowing young people ready access to treatment if they suffer from depression, where treatment is likely to prevent a possible suicide. Access to mental health services without parental consent could be limited to these more extreme cases of suicide risk.¹⁹ However, such a limitation may not be practical: it will not necessarily be readily apparent to a medical practitioner, on first meeting with a young person, whether or not that person poses a suicide risk. More fundamentally, it could be argued that young people of any age who are in a state of mental distress should be able to seek help, whether or not they want to tell their parents about the problem first in order to gain their consent for treatment. On the other hand, parents may be concerned that their children are, for instance, receiving counselling and possibly being prescribed drugs without their knowledge or authorisation. Towards the beginning of this Chapter,²⁰ the Commission cited situations in which the question whether a young person should have a right to consent to treatment might provoke differing responses. One of these situations was of a young person suffering from depression. Should that young person be given the right to consent to counselling, and possibly to medication such as anti-depressants, regardless of whether he or she passes any legal test for competence, or should his or her parents be involved in the decision of whether, and how, to treat the depression?

3.49 There are grounds for arguing that it is in the public interest to allow medical practitioners to treat young people for these four conditions based solely on the young person’s consent, without the need to obtain parental consent and, perhaps, despite parental objection. The same justification does not apply to allowing young people of all ages the right to refuse treatment for these four conditions. In fact, the public interest argument provides a ground for arguing that young people of any age should not have a right to refuse treatment for these conditions, regardless of whatever general right to refuse medical treatment is recognised.

Issue 3.14

(a)Should a young person of any age be able to consent to any of the following four types of medical treatment without requiring parental consent:

• contraceptive advice and prescription (excluding permanent or long-lasting forms of contraception);
• treatment for sexually transmitted diseases;
• treatment for drug and alcohol abuse;
• mental health services?




(b) Should a young person of any age be able to consent to mental health treatment to prevent a risk of suicide, without requiring parental consent? Should a young person be able to consent to mental health treatment where there is no immediate risk of suicide, without parental consent?

(c) Should a young person be able to refuse any of the forms of treatment listed above in (a)?

(d) If the law recognises a young person’s right to give personal consent to any of the forms of treatment listed in (a), should there be an additional requirement that the medical practitioner be satisfied that the treatment is in the young person’s best interests?

(e) Should parents be able to consent to, or refuse, any of the four forms of treatment listed in (a), on behalf of their child? Should parents be able to veto a consent given by their child for any of these forms of treatment? Should a young person be able to veto a consent, or refusal, of his or her parents for any of these four forms of treatment?

3.50 At present, a pregnancy can be lawfully terminated if there is a valid consent and the termination is necessary to protect the woman from serious danger to her physical and mental health.²¹ Presumably, under current law, only a young woman who is considered mature according to the Gillick test is able to give a valid consent to a termination. A young woman who does not meet this standard would therefore need to obtain her parents’ consent before a legal abortion could be performed. It is uncertain in what circumstances a young woman might refuse a termination of her pregnancy if her parents had consented to the termination.

3.51 For a young woman, the decision to terminate a pregnancy is one that, ideally, should be made with the guidance and advice, or at least the knowledge of, a parent. On the other hand, young women who are not considered legally competent to give personal consent may simply resort to “backyard abortions” rather than inform their parents of the pregnancy, at great risk to their health. It may also seem paradoxical that a young woman can be considered not to be sufficiently mature to have the capacity to consent to an abortion but, failing that termination, is deemed sufficiently mature to give birth and possibly raise a child.

3.52 As for a young woman’s right to refuse an abortion, it seems in some way an invidious violation of a woman’s right to bodily integrity and right to choose to impose an unwanted termination on her. At the same time, parents and other adults may have grounds for concern that, because of the young woman’s immaturity, she does not properly appreciate the demands of giving birth and raising a child.

Issue 3.15

(a) Should all young women below 18 be deemed competent to consent to a termination of pregnancy?

(b) Should all young women below 18 be deemed competent to refuse a termination?

(c) What legal role, if any, should the young woman’s parents play in the decision whether or not to terminate her pregnancy?

3.53 Should a pregnant woman who is below the age of 18 be able to give personal consent or refusal to pregnancy-related health care, or should the general test for determining competence to consent and refuse apply to this situation? For example, should a pregnant young woman be able to give personal consent to tests and ultrasounds that are routinely carried out to monitor the health of the foetus? Should a pregnant young woman have the right to refuse such tests? Should a young woman be considered competent to give personal consent or refusal to medical assistance in giving birth, such as consenting to or refusing a caesarean birth?

3.54 On the one hand, a woman who is sufficiently mature to have a child could be considered sufficiently mature to make decisions about her antenatal care. On the other hand, parenthood does not necessarily connote maturity and an immature young woman may make decisions about her health care that are detrimental not only to herself but also to the foetus.

Issue 3.16

(a) Should all pregnant women below 18 be considered competent to consent to pregnancy-related health care?

(b) Should all pregnant women below 18 be considered competent to refuse pregnancy-related health care?

(c) What role, if any, should the young woman’s parents play in making decisions about her antenatal care?

3.55 There are currently statutory provisions requiring court authorisation before certain types of treatment can be carried out on a person under 18, whether or not that person is generally considered competent to give personal consent to medical treatment. The Commission defers discussion of these provisions to Chapter 4.

1. Leanne Bunney describes three general approaches which currently reflect the community’s views of the medical treatment of children: libertarian (in favour of young people exercising adult rights as soon as they are able to); protectionist (in favour of protecting the young person’s “best interests”); and parentalist (in favour of the adult closest to the child, usually the parent, having sole control over the child until the child reaches legal maturity): see L Bunney, “The capacity of competent minors to consent to and refuse medical treatment” (1997) 5 Journal of Law and Medicine 52 at 52.

2. See Queensland Law Reform Commission, Consent to medical treatment of young people (Discussion Paper, WP 44, 1995) at 81; Law Reform Commission of Western Australia, Medical treatment for minors (Discussion Paper, Project 77, 1988) at para 3.8-3.11; A Bainham, The judge and the competent minor (1992) 108 Law Quarterly Review 194 at 196.

3. See Chapter 2 at para 2.7-2.14.

4. The Queensland Law Reform Commission endorsed this variation. It recommended that a young person’s competence to consent be judged according to whether or not he or she understood the nature and consequences of the health care, and communicated his or her decision in some way: see Queensland Law Reform Commission, Consent to health care of young people (Report 51, December 1996) Vol 2 at 201. See also the Scottish Law Commission, which recommended that a person below the age of 16 have capacity to consent to medical treatment if he or she were capable of understanding the nature and consequences of the treatment proposed: Scottish Law Commission, Report on the legal capacity and responsibility of minors and pupils (Scot Law Com No.110, HMSO, Edinburgh, 1987) at para 3.83. The Law Reform Commission of Manitoba also endorsed the application of the mature minor rule (that is, an assessment of a young person’s competence to consent according to his or her ability to understand the medical treatment in question), but considered that the common law was sufficiently clear without the need for further legislative clarification: see Manitoba Law Reform Commission, Minors’ consent to health care (Report 91, 1995) recommendations 1 and 2. The Law Reform Commission of Hong Kong also expressed support for the application of the mature minor rule: see Hong Kong Law Reform Commission, Young persons - effects of age in civil law (Topic 11, 1986) at para 5.5.5.

5. See Consent to Medical Treatment and Palliative Care Act 1995 (SA s 12(b)(i)), which provides for a young person below the age of 16 to consent to medical treatment if capable of understanding the nature, consequences and risks of the treatment, and if the treatment is in the best interests of the young person’s health and well-being. In British Columbia, Canada, s 17 of the Infants Act RSBC 1996 c. 223 makes similar provision for the validity of a young person’s consent to be subject to the medical treatment being in his or her best interests. The Uniform Law Conference of Canada also recommended a Uniform Act for Canada governing the capacity of young people to consent to medical treatment. According to its scheme, a mature young person’s capacity to consent would be limited by the requirement that the medical treatment be in the young person’s best interests: see Canada, Uniform Law Conference, Proceedings of the fifty-seventh annual meeting of the uniform law conference of Canada (1975) Appendix N.

6. See the Law Reform Commission of Western Australia, which proposed a statutory scheme that confirmed the common law right of young people to consent to medical treatment if they were mature, and that regarded young people aged between 13 and 16 as presumptively mature, and young people below the age of 13 as potentially mature if that maturity could be established to the medical practitioner’s satisfaction: see Law Reform Commission of Western Australia, Medical treatment for minors (Discussion Paper, Project No. 77, 1988) at para 5.9-5.17.

7. See Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 12(b)(ii) and the recommendation of the Uniform Law Conference of Canada in Proceedings of the fifty-seventh annual meeting of the uniform law conference of Canada (1975) Appendix N. The Queensland Law Reform Commission ultimately rejected as impracticable any such requirement for a second medical practitioner’s opinion: see Queensland Law Reform Commission, Consent to health care of young people (Report 51, December 1996) Volume 2 at 257-258.

8 See para 2.11-2.14.

9. See the discussion of the development of young people’s decision-making skills in Chapter 1, at paragraph 1.14-1.15.

10 See L Bunney, “The capacity of competent minors to consent to and refuse medical treatment” (1997) 5 Journal of Law and Medicine 52 at 61, 80.

11. See para 3.11 above.

12. See Saskatchewan Law Reform Commission, Proposals for a Consent of Minors to Health Care Act (Report to the Attorney General, February 1980) Chapter 7 at 12-13, Appendix D.

13 See para 1.38-1.43.

14. For further discussion of a fixed-age rule to determine competence, see A Newman, “Adolescent consent to routine medical and surgical treatment: a proposal to simplify the law of teenage medical decision-making” (2001) 22 Journal of Legal Medicine 501.

15. For example, in South Australia, a person of or over 16 years of age is able to make decisions about his or her own medical treatment as if he or she were an adult: see Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 6. See also Family Law Reform Act 1969 (UK) s 8, following a recommendation of the Committee on the Age of Majority: see England and Wales, Report of the committee on the age of majority (Cmnd 3342, HMSO, London, 1967) at para 474-484. Similarly, law reform bodies elsewhere have recommended adoption of a legislative scheme that regards young people aged 16 and above as if they had the legal competence of adults in terms of making decisions about their medical treatment: see Saskatchewan Law Reform Commission, Proposals for a Consent of Minors to Health Care Act (Report to the Attorney General, 1980) Appendix D; Law Reform Commission of Western Australia, Medical treatment for minors (Discussion Paper, Project No. 77, 1988) at para 5.11-5.13; Scottish Law Commission, Legal capacity and responsibility of minors and pupils (Report, Scot Law Com No. 110, Edinburgh, HMSO, 1987) at para 3.62.

16 See Chapter 2 at para 2.28-2.31.

17. See para 9.15-9.18.

18. This was a view put forward by the Queensland Law Reform Commission: see Queensland Law Reform Commission, Consent to health care of young people (Report 51, 1996) Volume 1 at 79.

19. This was recommended by the Queensland Law Reform Commission: see Queensland Law Reform Commission, Consent to health care of young people (Report 51, 1996) Volume 1 at 116 (although the Queensland Law Reform Commission did note that, since much psychiatric and psychological treatment did not involve any physical contact, liability in trespass for treating without a valid consent would not usually arise).

20. See para 3.8.

21 See R v Wald (1971) 3 NSWDCR 25. See also K v Minister for Youth and Community Services [1982] 1 NSWLR 311.