• Overview
• When parents disagree
• Recognising the involvement of other family members or caregivers
• Medical treatment requiring authorisation by a court or tribunal

OVERVIEW

4.1 This chapter considers the situation where young people are not legally competent to consent to, or refuse, medical treatment themselves. In such cases, it is generally the young person’s parents who consent or refuse, on the young person’s behalf, and medical practitioners generally seek the parents’ consent, or refusal, before treating (or not treating).¹ The Commission has identified three main questions about the role of parents in making medical decisions for young people who are not legally competent to make those decisions for themselves:

• What should happen when parents disagree about whether to consent to or refuse medical treatment for their child?
• Should family members other than parents be legally entitled to participate in the decision-making process regarding the child’s medical treatment?
• Should there be limits on the parents’ ability (or that of any other family member, or the legally competent young person) to consent to or refuse medical treatment for their child, and if so, where should those limits lie? That is, are there some medical decisions that should not be able to be made solely by the parents (or a competent young person), but that should require some authorisation from an external body, such as from a court?

4.2 When a child is not legally competent to consent to or refuse medical treatment, parents must usually make that decision on the child’s behalf. What should happen, then, if parents cannot agree about the appropriate decision to make? As a general rule, both parents of a child have responsibility for the child, whether or not the child lives with that particular parent.² When parents cannot agree about whether to consent to or refuse medical treatment for their child, there is currently provision for the final decision to be made by a court. The Family Court has jurisdiction to make orders about the welfare of a child, including orders concerning the child’s medical care.³ Indeed, the Family Court has issued guidelines on medical procedures for children, outlining “special medical procedures” for which Family Court authorisation must first be sought. The guidelines list as one such special medical procedure, a significant procedure about which parents disagree.⁴ It is possible that the Supreme Court of New South Wales retains a limited jurisdiction over children’s medical treatment.⁵ There is also general provision in Chapter 4 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) for the Director-General of the Department of Community Services to take action to protect the safety, welfare, and well-being of a child or young person. Such action can include development of a care plan for the child or young person, in consultation with the parents, as well as use of alternative dispute resolution to resolve problems arising from the care of a child or young person.⁶ These general provisions could be relied on to resolve disputes between parents about their child’s medical care, where there was concern that such a dispute was affecting the child’s welfare.

Issue 4.1

Is there adequate provision in the current law for settling disputes between parents about their child’s medical care?

Issue 4.2

Should medical practitioners be excused from liability in battery or assault for acting on the consent of one parent only?

4.4 In general,¹¹ it is the responsibility of parents to make decisions about their child’s medical care (except in cases where medical treatment must be authorised by a court), as part of the exercise of their parental responsibility.¹² It has been suggested¹³ that this approach does not take account of Aboriginal and Torres Strait Islander cultural traditions and their emphasis on the role of the extended family and kinship group in raising children. Similarly, the traditions of some groups of people from non-English speaking backgrounds may place greater emphasis on the involvement of the extended family. It is also possible to imagine situations where, for many different reasons, children are raised or cared for by family members other than their parents, without formal adoption arrangements being entered into. In such situations, should family members and other caregivers have a legal right to consent to or refuse medical treatment on behalf of the child or should they at least have a legal entitlement to be involved in the decision-making process?

4.5 There is some suggestion that, at common law, a person can be found to stand “in loco parentis” to a child and have responsibility for the care of the child.¹⁴ For example, a person, such as a grandparent, may take over the care of the child and become, in effect, a foster parent, though without any formal arrangements being made. It is questionable, however, whether a person in this position would have the authority to give a legal consent or refusal in respect of the child’s medical treatment.¹⁵ In some jurisdictions, legislation makes some provision for a person who has been acting in the place of a parent to consent to medical treatment for a child.¹⁶ There are provisions in the Family Law Act 1975 (Cth) for the Family Court to make a specific issues order concerning a child in favour of a person other than the child’s parents. A specific issues order can confer any aspect of parental responsibility on a person, including responsibility for the long-term or the day-to-day care, welfare and development of the child.¹⁷ Arguably, such an order could include responsibility for making certain medical decisions, or medical decisions generally, for a child.

Issue 4.3

(a) Should a caregiver or relative other than a young person’s parents have authority to consent to or refuse medical treatment for the young person?

(b) If so, in what situations should the law recognise the right of someone other than a parent to make medical decisions for a young person?

(c) Is there adequate provision in the Family Law Act 1975 (Cth) for the law to recognise the authority of someone other than a young person’s parents to make decisions about that young person’s medical treatment?

4.6 Parents do not have an unlimited power to consent to and refuse all types of medical treatment for their children. There are certain types of medical procedures that cannot be performed on a young person unless a court, or tribunal, has authorised the procedure. Similarly, in certain situations, a court can order a particular medical procedure to be carried out on a child despite a parent’s refusal of the treatment. In New South Wales, the final decision about whether, and how, to treat a child in certain situations lies not with the parents but with either:

• the Supreme Court of New South Wales;
• the New South Wales Guardianship Tribunal; or
• the Family Court of Australia.

4.8 In addition to legislation requiring court or tribunal authorisation, the common law imposes limits on parents’ ability to make medical decisions for their children and requires that certain types of treatment be authorised by a court. The common law principles are outlined below, at paragraphs 4.11-4.15.

4.9 There is a great deal of uncertainty surrounding this area of the law governing consent to medical treatment of young people. There is also suggestion that the law as it stands is failing in its aim to provide adequate safeguards to protect children’s right to bodily integrity and ensure that serious medical procedures are only authorised if they are in a child’s best interests.¹⁹ The implementation of a coherent framework, following a considered and consistent policy approach, may provide greater protection of young people’s rights, as well as give both parents and medical practitioners greater certainty as to their roles and responsibilities.²⁰ Any attempt to formulate such a framework must consider the following uncertainties and questions of policy arising from the law as it currently operates:

• the uncertainty of the common law principles requiring court authorisation for certain medical decisions;
• possible gaps and inconsistencies in the legislative provisions relating to court or tribunal authorisation;
• questions and uncertainties surrounding which external body does and should have power to decide applications for authorisation, and the criteria that should be applied in reaching such a decision;
• at the most fundamental level, whether it is preferable to place the power and responsibility of making certain, very important decisions about a young person’s medical care with an independent third party rather than with the young person’s parents.

Common law principles

4.11 At common law, parents have a responsibility to provide for the maintenance, protection, and education of their children and have the powers necessary to discharge that responsibility.²¹ Those powers include the power to consent to or refuse medical treatment. This power is assumed to be exercised in the child’s best interests, this being the overriding criterion to be applied in the exercise of parental authority. If there is any question about whether or not a parent’s decision is in a child’s best interests, any person who is concerned about the child’s welfare may apply to a court for an order authorising appropriate treatment for the child.²² Historically, the common law has conferred on the State Supreme Court the overriding power to ensure that parents, and others, act in a young person’s best interests. This power derives from what is known as the “parens patriae” jurisdiction of the Supreme Court and originates from the ancient power of the English king to care for those subjects who could not care for themselves. The parens patriae jurisdiction of the Supreme Court allows it to act as the final decision-maker in relation to the medical treatment of a child, even if its orders go against the parents’ decision.²³

4.12 The Australian High Court has held, in Marion’s case,²⁴ that there are certain medical procedures to which a parent cannot consent on a young person’s behalf because, given their nature, they require an external, independent body, namely a court, to decide whether or not they are in the best interests of the child. The requirement for court authorisation in these cases provides a safeguard to ensure that the best interests of the child are met.

4.13 The particular procedure considered by the High Court in Marion’s case was the sterilisation of a young woman with an intellectual disability. The majority of the High Court found that, in situations where a young person is not competent to give a personal consent, sterilisation was a special case that required authorisation from a court before it could be carried out on the young person. Medical practitioners could not perform such a procedure based solely on the consent of the parents. In coming to this conclusion, the majority of the High Court was careful to distinguish between sterilisation that was an end in itself and sterilisation that was an incidental by-product of surgery that was intended to cure some malfunction or disease. Sterilisation that was an incidental by-product could be authorised by the parents of a legally incompetent young person, whereas sterilisation that was not an incidental by-product, but an end in itself, must be authorised by a court.²⁵

4.14 The majority of the High Court found that there were certain features of sterilisation that took it outside the ordinary scope of parental power to consent and required instead a court’s assessment of whether it was in the young person’s best interests. These features were, firstly, that the procedure involved invasive, irreversible and major surgery, secondly, that there was a significant risk of making the wrong decision about whether the procedure was in the young person’s best interests, and lastly, that the consequences of such a wrong decision were particularly grave. It was the combined effect of these features that made sterilisation a special case and removed it from the scope of a parent’s power to authorise.

4.15 The High Court’s discussion in Marion’s case was limited to the question of sterilisation. Are there other medical procedures that the High Court would consider to be special cases, requiring court authorisation before they can be carried out? There seems no reason in principle why the majority’s ruling in Marion’s case could not apply equally to other major medical procedures that have similar features to sterilisation in terms of being irreversible, invasive, with a high risk of making a wrong decision, and with the consequences of a wrong decision being particularly grave. There may be other major medical procedures which, applying the policy approach underlying the majority’s decision, also require an objective assessment by an external body as a procedural safeguard against unjustified abuse of a young person’s right to bodily integrity. For example, a lobotomy is one such medical procedure that could be argued to come within the category of a special case.²⁶ The Family Court has recently asserted that the principles arising from Marion’s case should not necessarily be confined to cases involving surgery but could apply equally to treatment with a similarly irreversible effect involving, for example, the use of radiation or pharmaceuticals.²⁷

Uncertainty of the common law

4.16 It might be argued that the common law is uncertain as to the types of medical treatment for which it requires court authorisation before they can be carried out. In Marion’s case, the High Court stated categorically that (non-incidental) sterilisation required court authorisation, but it is not certain whether the majority’s ruling can be confined to sterilisation alone, or whether the criteria that it set down for finding sterilisation to be a special case could be applied to other types of medical treatment.

Issue 4.4

(a) Should the common law have any role in limiting the types of medical treatment to which parents can consent or would it be preferable, or even possible, to spell out in legislation the medical procedures for which authorisation from an external body is required, or at least to list in legislation the criteria for deciding whether a particular procedure requires such authorisation?

(b) Should legislation specify certain medical procedures that should not be carried out on a young person until the young person is legally competent to consent to it personally, unless there are sound medical reasons for carrying out the procedure before that time? For example, should legislation prohibit gender-assigning surgery on children with intersex conditions except when they are competent to consent to the surgery themselves?²⁸

4.17 Three statutes operate in New South Wales to impose specific limits on parental power by requiring external authorisation for certain medical procedures in certain situations.²⁹ These are:

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

“Special medical treatment” for any child under 16

4.19 A medical practitioner cannot carry out “special medical treatment” on a child under 16 without first obtaining approval from the Guardianship Tribunal, except in cases of emergency, and irrespective of whether or not the child would otherwise be considered legally competent to consent.³⁰ “Special medical treatment” means:

• medical treatment that is intended or is reasonably likely to render the young person permanently infertile (except where it is intended to address a life-threatening condition or is an unwanted consequence);
• long-acting injectable hormonal substance for the purpose of contraception or menstrual regulation;
• medical treatment in the nature of a vasectomy or tubal occlusion;
• medical treatment involving the administration of an addictive drug;
• certain medical treatment involving an experimental procedure; and
• in the case of a child in residential care, the administration of a psychotropic drug used to control the child’s behaviour.

“Special treatment” for a young person, aged 16 or over, who is incapable of giving consent

4.21 For a young person aged 16 or over, who is incapable of giving consent (or an adult, who is incapable of giving consent), a medical practitioner cannot carry out “special treatment” without first obtaining the consent of the Guardianship Tribunal,³¹ except in cases of emergency.³² This provision forms part of a general framework set up by Part 5 of the Guardianship Act 1987 (NSW) to provide medical and dental treatment to people aged 16 and over, who are incapable of giving personal consent. Under the Act, a person is considered incapable of giving consent if he or she is either incapable of understanding the general nature and effect of the proposed treatment or is incapable of indicating whether or not he or she consents to it.³³ “Special treatment” in this context means:³⁴

• any treatment intended, or reasonably likely, to have the effect of rendering the person permanently infertile;
• any new treatment that has not yet gained the support of a substantial number of medical practitioners specialising in the area of practice concerned;
• administration of an addictive drug;
• termination of pregnancy;
• sterilisation by means of vasectomy or tubal occlusion; or
• aversion therapy.

Differences in rules for consent to special medical treatment

4.23 As is evident from the discussion above, different legislative provisions govern the rules relating to consent to special medical treatment for those people aged below 16 and those people who are legally incompetent to decide and are aged 16 and above: s 175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) applies to young people below 16, and Part 5 of the Guardianship Act 1987 (NSW) applies to young people, and adults, aged 16 and above. There are several differences between the two sets of legislative provisions that are worth noting:

• The types of treatment that are included within the definition of “special” medical treatment vary slightly for each age group. For those aged 16 and above, treatment that involves the administration of a long-acting injectable hormonal substance for the purpose of contraception or menstrual regulation is not special treatment and consequently, the young person’s parents can consent to this type of treatment. In contrast, this type of treatment is considered special medical treatment for young people below the age of 16 and requires the authorisation of the Guardianship Tribunal before it can be carried out. The termination of a pregnancy and aversion therapy are both considered special treatment in respect of people aged 16 and over and consequently require the Tribunal’s authorisation before they can be carried out. For people below 16, however, abortions and forms of aversion therapy are not special medical treatment and do not require the Tribunal’s authorisation, but instead can be consented to by the parents (with the possibility of intervention by the Supreme Court or the Family Court, in exercise of their parens patriae or welfare jurisdiction). Finally, the administration of a psychotropic drug on a young person under 16, in out-of-home care, is considered to be special medical treatment, requiring the Tribunal’s authorisation, but no such requirement applies in relation to a young person 16 or over who is in out-of-home care.
• The criteria by which the Guardianship Tribunal can consent to special treatment for a person aged 16 and over are more detailed and, arguably, slightly broader than they are in respect of special medical treatment for a person aged below 16.
Issue 4.5

(a) Should different rules apply to the types of medical treatment that require the consent of the Guardianship Tribunal and to the criteria by which the Tribunal decides whether or not to give its consent, for young people aged below 16, from young people aged 16 and above?

(b) Are the statutory provisions relating to “special medical treatment” under the Children and Young Persons (Care and Protection) Act 1998 (NSW), and “special treatment” under the Guardianship Act 1987 (NSW), sufficiently clear to operate effectively in practice?

4.24 The Family Law Act 1975 (Cth) confers on the Family Court of Australia a general jurisdiction to make orders regarding the welfare of children. Section 67ZC of the Act gives the Family Court the power to make orders relating to the welfare of children, with the best interests of the child as the paramount consideration in making such orders.³⁷ This power is regarded as an independent head of power, separate from the Family Court’s powers to make orders regarding children’s residence and contact with parents, and has been likened to the parens patriae jurisdiction of the State Supreme Court.³⁸ It has been held to include the power to make orders regarding a child’s medical treatment and to impose limits on a parent’s power to make final decisions about a child’s medical care.³⁹ For example, the Family Court can authorise or refuse sterilisation of a young girl who is incapable of giving personal consent, on the grounds that this is a decision that lies beyond the power of parents to make.⁴⁰ Other examples of treatment that the Family Court has jurisdiction to authorise (or refuse) include:

• gender reassignment performed on a hermaphroditic child;⁴¹
• life-saving heart surgery performed on a child with a congenital heart abnormality;⁴²
• organ and bone marrow donation by a young person;⁴³
• prescription of the contraceptive Pill for a teenage girl, in anticipation of subsequent hormone therapy once the girl reaches 16 years of age, as the first steps towards sex reassignment.⁴⁴

Human Tissue Act 1983 (NSW)

4.26 It is also worth making specific reference to s 10 of the Human Tissue Act 1983 (NSW). This legislative provision, unlike those outlined above, does not require authorisation from a court or tribunal for certain medical procedures to be performed on a child. On the contrary, it expressly allows for parents to consent to the donation from their child’s body of specified regenerative tissue, such as bone marrow, for the purpose of its transplantation to the body of a parent, brother or sister of the child. The child must understand the nature and effect of the procedure and must agree with the proposed removal. A “child” is defined by the Act as a person who is not married and is under 18.

Issue 4.6

Does s 10 of the Human Tissue Act 1983 (NSW) offer adequate safeguards to protect the health and well-being of the child?⁴⁶

4.27 As outlined in the discussion above, the Family Court, the Supreme Court and the Guardianship Tribunal all have power to authorise or veto medical treatment, as conferred on them either by legislation or by the common law. For parents (or any other interested party) seeking authorisation for a particular procedure, to which body should their application be made? The answer is not clear: there is a great deal of uncertainty about the jurisdictional limits of these three bodies, that is, which body has the power to make which medical decisions relating to young people. The practical consequence of this is that people seeking authorisation for a medical procedure may be unsure which body to apply to or may be able to apply to the Family Court if they receive an unfavourable outcome from the State bodies. As the Family Court applies different legislative criteria when making a decision from the criteria applied by the State bodies, the same case may, potentially, have a different outcome depending on the forum in which it is heard.

Constitutional complications

4.28 The uncertainty in jurisdictional limits arises largely from the constitutional constraints imposed on State and federal bodies. These constitutional constraints are discussed briefly below.

4.29 As summarised above, State legislation requires that certain medical procedures, such as sterilisation, be authorised by the Guardianship Tribunal for people under 16, and people 16 and over who are incapable of giving personal consent. As noted in paragraphs 4.24-4.25 above, the Family Court also has legislative power to make orders about the medical treatment of children including, for example, the power to authorise or refuse sterilisation of a young person, on the basis that such a procedure requires authorisation from a court rather than from the young person’s parents. There is potential for conflict between the State tribunal and the federal court because both are empowered to determine the same matters (although the federal court’s jurisdiction is broader). Notwithstanding the potential conflict and duplication by a State body of a federal court’s powers, the High Court has held that the State tribunal’s power to hear and decide such applications remains valid, with the qualification that if the Family Court has already heard and determined a particular application, the Guardianship Tribunal cannot subsequently hear and decide the same application.⁴⁷ This position opens up a limited opportunity for “forum shopping”. For example, parents (or any other interested party) could apply to the Guardianship Tribunal for authority to order the sterilisation of their child, and if the Tribunal dismisses that application, they could then have a second attempt at obtaining authorisation by applying to the Family Court.

4.30 It is open to question whether, and the extent to which, the New South Wales Supreme Court retains its parens patriae jurisdiction over children and their medical care. Traditionally, the Supreme Court exercised its parens patriae jurisdiction to make a child a ward of the court or, even without making a child a ward,⁴⁸ had wide powers to make orders concerning the child’s life and welfare, superseding the rights and powers of parents to make such decisions.⁴⁹ As noted at paragraph 4.11, the Supreme Court’s parens patriae jurisdiction derives from the common law and, as with most common law principles, legislation can exclude the Supreme Court’s parens patriae jurisdiction either by express provision or by necessary implication, which means that the Court no longer has jurisdiction to make orders for the welfare of a child in the particular area dealt with by the legislation.

4.31 The Guardianship Act 1987 (NSW) expressly preserves the Supreme Court’s jurisdiction to make orders relating to the “special treatment” of people 16 and over, who are incapable of giving personal consent, except for certain types of special medical treatment such as sterilisation, which must be authorised by the Tribunal.⁵⁰ Both the Supreme Court and the Guardianship Tribunal could therefore authorise most treatment falling within the legislative definition of “special medical treatment” for people 16 and over who are incapable of consenting, except for certain types of treatment, such as sterilisation. There is no such express preservation of the Supreme Court’s jurisdiction in s 175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), requiring the Guardianship Tribunal to authorise special medical treatment for people under 16. However, there is a general provision in the Children and Young Persons (Care and Protection) Act 1998 to the effect that nothing in that Act limits the jurisdiction of the Supreme Court.⁵¹ It has been held that, by virtue of that general provision, the parens patriae jurisdiction of the Supreme Court is not ousted by the Children and Young Persons (Care and Protection) Act 1998 but, on the contrary, is expressly preserved.⁵² It is open to question whether that general provision is enough to preserve the Supreme Court’s parens patriae jurisdiction with respect to authorising the medical procedures listed as “special medical treatment” in s 175 of the Act, with the result that a parent could apply either to the Supreme Court or the Guardianship Tribunal for authorisation to carry out special medical treatment, as defined in s 175, on their child aged below 16.⁵³

4.32 Whatever provision is made in State legislation to preserve the Supreme Court’s parens patriae jurisdiction, it is not clear whether, and to what extent, the Supreme Court’s jurisdiction is limited by the exercise of the Family Court of its welfare jurisdiction under s 67ZC of the Family Law Act 1975 (Cth). The Supreme Court has held that its parens patriae jurisdiction is not affected by the Family Court’s welfare jurisdiction, at least in respect of children who are already in custody under the State child protection legislation,⁵⁴ and it has also been suggested⁵⁵ that the whole of the Supreme Court’s parens patriae jurisdiction with respect to the wardship, custody and care of children is unaffected by the Family Law Act 1975, whether or not the child is in custody by virtue of an order of the Children’s Court.

4.33 It is possible that, like the Guardianship Tribunal, the Supreme Court retains jurisdiction to hear matters relating to the medical treatment (among other things) of children, but cannot make an order in a case that has already been decided by the Family Court. One area in which, possibly, the Supreme Court may retain jurisdiction to the exclusion of the Family Court is in matters relating to the welfare of ex-nuptial children. It is not altogether certain whether the Family Court’s welfare jurisdiction is limited to jurisdiction over children whose parents are or have been married, despite New South Wales referring its legislative power over ex-nuptial children to the Commonwealth.⁵⁶ If this is the case, parents in New South Wales may be faced with the situation that, if they have been married, they can apply to the Family Court for authority to carry out certain medical procedures on their child, but if they have not been married, they must apply to the Supreme Court (or the Guardianship Tribunal, if the medical procedure in question falls within the definition of “special medical treatment”).

Who should decide?

4.34 Assuming support for the basic proposition that an independent body should have authority to intervene in certain decisions regarding a young person’s medical care,⁵⁷ which body should decide? The Commission recognises the limitations on the extent to which it can recommend reform of this area, given the constitutional constraints outlined above. However, there is so much uncertainty and inconsistency surrounding the question of jurisdiction to authorise and refuse medical care, as well as a significant number of calls for reform,⁵⁸ that, despite its limitations, the Commission considers it important to discuss options for reform, if only to encourage further consultation and co-operation between the State and the Commonwealth and consideration of implementation of a recommended model.

4.35 Several agencies have previously considered the question of which body should, in an ideal scheme, have authority to hear and determine applications to carry out, or refuse, certain medical procedures on young people.⁵⁹ The focus of these earlier reports has been sterilisation of young people and opposing views were taken as to whether the Family Court or the Guardianship Tribunal was the more appropriate body.

4.36 The following arguments were made in favour of vesting exclusive jurisdiction in the Guardianship Tribunal:⁶⁰

• The Tribunal has expertise and experience in hearing cases involving the medical treatment of young people and people with disabilities. Its composition includes a professional member, such as a medical practitioner, and community members with experience in the area of treating young people and people with disabilities, who bring their expertise to the process of scrutinising and assessing medical evidence.⁶¹ In contrast, courts are more likely than tribunals to defer to the expert medical evidence presented to them.
• The Tribunal is sensitive to the special needs of the parties in particular cases and is flexible in the way it hears such cases to accommodate those needs.⁶² For example, when hearing applications for sterilisation of young women, the Tribunal as a matter of convention has at least one female member sitting, who has a one-to-one discussion with the young woman for whom the application is made.
• Proceedings in the Tribunal are generally non-adversarial and more informal than court proceedings: it is not bound by the rules of evidence and legal representatives may only appear in the Tribunal with leave.⁶³ These factors should make the experience less intimidating than the experience of a court hearing for the parties involved, particularly for the young person. It also means that the Tribunal can take a more proactive role in assessing whether or not the medical treatment in question is really in the young person’s best interests.
• Proceedings in the Guardianship Tribunal are much cheaper than in the Family Court (or Supreme Court), which in turn makes the Tribunal more accessible to a greater number of families.⁶⁴
• State legislation conferring the Guardianship Tribunal with jurisdiction to decide matters relating to “special medical treatment” and “special treatment” also makes it a criminal offence to carry out such procedures without first obtaining the Tribunal’s authorisation.⁶⁵ Procedures such as unlawful sterilisation are therefore criminalised under New South Wales law. There is no such obvious provision for criminal sanctions to be imposed under the Family Law Act 1975.

• The decision whether or not to carry out a particular medical procedure, such as sterilisation, on a young person is a very important one, usually with grave and irreversible consequences. While court proceedings are generally more formal than those in a tribunal, this is not necessarily a disadvantage, but should instead ensure that the matter is heard in a fair, objective manner. A court hearing also makes a strong public statement about the seriousness of the issue and the importance of protecting the rights of the young person involved.
• The Family Court is able to establish a body of law over time in the area of the medical treatment of young people, which should allow for more consistent decision-making.
• It is only by vesting jurisdiction in a federal body such as the Family Court that there can be uniformity across Australia in this area. Uniformity is important to ensure that the rights of all Australian children are equally protected.
• Family Court proceedings involving children are not governed by the same adversarial procedures as other Family Court proceedings. There is scope for the Court to take on a more inquisitorial role in medical treatment cases, with a move towards more informal proceedings, and use of the Court’s counselling facilities to ensure that formal proceedings are a matter of last resort.⁶⁷ Indeed, the Family Court recently dealt with a matter concerning authorisation for medical treatment for a young girl.⁶⁸ The proceedings were more inquisitorial than adversarial. The matter was heard around a conference room table with evidence in chief from certain witnesses being given viva voce instead of by affidavit. There was an opportunity for general discussion and dialogue between the judge, the witnesses, and the legal representatives, much more than usually occurs in cross-examination in conventional court proceedings. The Chief Justice of the Family Court recommended that the Court follow this more unconventional procedure in special medical treatment cases.
Issue 4.7

(a) Is the current system for the authorisation of medical treatment for a young person in the Guardianship Tribunal, the Family Court or the Supreme Court working in practice?

(b) Are any of the following options preferable to the current system for deciding cases involving the medical treatment of young people, and why or why not?

Option A: The Family Court has sole jurisdiction to authorise or refuse medical procedures requiring external authorisation.

Option B: The NSW Guardianship Tribunal has sole jurisdiction to authorise or refuse medical procedures requiring external authorisation.

Option C: A co-ordinated system is established in which both the Family Court and the Guardianship Tribunal have jurisdiction to hear such cases, but the current uncertainties and duplications are worked out in some way.

(c) If any of these options are preferred to the current system, what role, if any, should the Supreme Court of New South Wales play in hearing cases involving the medical treatment of young people?

4.38 What criteria should the chosen body apply, whether it be the Family Court, the Guardianship Tribunal, or even the Supreme Court, in making a decision to authorise or refuse medical treatment for a young person? At present, the Guardianship Tribunal and the Family Court are guided by two different sets of criteria:

• The Family Court is guided by a broad discretion, with reference only to considerations of the welfare of the child or the best interests of the child. As noted in paragraph 4.24 above, the Family Law Act 1975 does spell out in general terms matters that the Court should consider in determining the best interests of the child, but these are not given any specific application to decisions about a child’s medical care.
• The Guardianship Tribunal is guided by a more structured decision-making process, with legislation spelling out specific matters to consider in deciding whether or not to authorise the medical procedure in question.⁶⁹ These criteria set a very high threshold that must be met before a procedure can be authorised, requiring that the treatment be necessary either to save the patient’s life or to prevent serious damage to the person’s health.

Issue 4.8

(a) In guiding the court or tribunal’s decision whether or not to authorise certain medical treatment for a young person, should legislation provide for a broad discretion, with a general reference to the young person’s best interests or welfare, or should it spell out a specific set of criteria that must be taken into account?

(b) Should legislation focus on specific types of medical treatment and apply special rules to making decisions about those procedures or should it set down criteria to be applied generally to all types of medical treatment requiring external authorisation?

4.40 At the most fundamental level of this discussion is the question whether ultimate responsibility for certain medical decisions should lie with a court or tribunal, rather than with the parents of the young person affected. Should the law impose limits on the right of parents to consent to and refuse medical treatment for their child in this way? The following paragraphs outline arguments for and against placing ultimate responsibility for these decisions with an external body, such as a court or tribunal.⁷²

Arguments in favour of requiring authorisation by an external body

• Certain medical procedures and types of treatment have such serious consequences that the decision whether or not to carry them out should be made by an objective party, external to those who are closely affected by the decision. This approach ensures heightened accountability in the decision-making process in an area where young people are at significant risk of serious abuse of their fundamental human right to bodily integrity.
• Serious medical procedures, such as sterilisation, should be considered and weighed up as public policy issues, rather than as private family matters. They have such serious consequences for the individual rights of the young person that they should be open to public scrutiny and not left as private matters for parents alone to debate.
• From a medical practitioner’s perspective, the involvement of the courts eases the burden on the medical profession in participating in making difficult decisions that often raise moral and ethical questions.

• Parents know their children at the most intimate level. They alone know the particular needs of their child as an individual and they know what is best for their child. Loving parents do not make serious medical decisions for their children lightly and such decisions should not be taken out of their hands.
• Parents are expected to cope with the consequences of the medical decision that is made and should be able to claim some control over the decision-making process.
• The requirement to seek external authorisation can cause crucial time delays and significant expense for families.
Issue 4.9

In cases where a young person is not legally competent to consent to or refuse treatment, should the decision to carry out or refuse certain medical treatment ever rest with an external body, such as a court or tribunal, rather than with the young person’s parents?

4.41 The legislation outlined above, requiring external authorisation for certain medical procedures on young people, applies whether or not the young person is generally considered legally competent to give a personal consent to medical treatment. In this way, the law imposes restrictions not only on the ability of parents to make medical decisions for their children, but also on the ability of young people to make such decisions themselves, even if they are considered sufficiently mature to understand the treatment involved. There are no such limitations on the ability of legally competent adults to consent to or refuse medical treatment. For example, a person under 16 cannot give a legal consent to be sterilised, even if he or she is considered sufficiently mature to understand the procedure and consequences involved,⁷³ whereas a legally competent person over 18 can consent to his or her own sterilisation.

4.42 In theory, at least, it seems harder to justify restricting the capacity of a mature young person to make medical decisions than it is to restrict the capacity of parents to make decisions on their child’s behalf. If a young person is to be granted the right to make his or her own medical decisions on the basis that he or she has reached the requisite level of maturity, why should that young person not be able to exercise that right in the same way as an adult? The Commission can think of two bases on which to justify such a restriction on a mature young person’s capacity to consent or refuse:

• The medical decision made by the young person may not be in his or her best interests (assuming that the notion of “best interests” can be satisfactorily determined in some way).⁷⁴ For certain medical procedures, such as sterilisation, the consequences can be so serious, and the risk of making a wrong decision so grave, that there should be some kind of external check on the young person’s right to decide, with an objective body empowered to consider whether the decision is in the young person’s best interests. This approach supports a more paternalistic framework for determining a young person’s right to decide than a model that simply grants a young person a right to decide on reaching a certain level of maturity.
• The requirement for external authorisation provides an (indirect) means of double-checking the medical practitioner’s assessment of the young person as sufficiently mature to understand and consent to (or refuse) the treatment in question. In the absence of any other mechanism for scrutinising the medical practitioner’s assessment, it is important to provide some form of safeguard against the medical practitioner making an incorrect assessment, at least for procedures, such as sterilisation, for which the consequences are serious and irreversible.
Issue 4.10

(a) In cases where a young person is legally competent to consent to, or refuse, certain medical treatment, should the law restrict that young person’s ability to consent to or refuse the treatment and require authorisation for the treatment from an external body, such as a court or tribunal?

(b) If so, should the same criteria apply to determining the types of medical treatment for which external authorisation is required as apply to determining the types of medical treatment to which a parent cannot consent to or refuse?

(c) Should the same procedures apply for obtaining such external authorisation as apply in the case of parents seeking authorisation?

1. The situations in which medical practitioners may treat young people without first obtaining consent from either the young person or the parents are discussed in Chapter 5.

2. See Family Law Act 1975 (Cth) s 61B, 61C. See also eg Gillick v West Norfolk Area Health Authority [1986] AC 112; Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218. The exercise of parental responsibility can be affected or curtailed by an order of a court: see Family Law Act 1975 (Cth) s 61C(3). Alternatively, the powers that a parent may exercise in respect of his or her child may be varied upon agreement between the parents in a parenting plan: see Family Law Act 1975 (Cth) s 63C.

3. See Family Law Act 1975 (Cth) s 67ZC, 68B (empowers the Family Court to order injunctions for the welfare of a child). See para 4.24-4.25 for a more detailed discussion of the welfare jurisdiction of the Family Court.

4. See Family Court of Australia, A Question of Right Treatment, The Family Court and Special Medical Procedures for Children – An Introductory Guide (1998) (Victorian version) at viii (as at 9 March 2004) «www.familycourt.gov.au/html/medical_procedures.html».

5. See para 4.28-4.33 about the constitutional uncertainties surrounding the jurisdictional limits of the Family Court and the parens patriae jurisdiction of the Supreme Court, particularly in relation to the welfare of ex-nuptial children.

6. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 37.

7. See paragraphs 2.15-2.17 for a summary of the operation of s 49.

8. See paragraphs 2.35-2.46 for a summary of the operation of Part 5 of the Guardianship Act 1987 (NSW).

9. See Guardianship Act 1987 (NSW) s 3(1).

10. Guardianship Act 1987 (NSW) s 33A(2).

11. The exercise of power under parental responsibility is subject to any contrary order of a court: see Family Law Act 1975 (Cth) s 61C(3).

12. See Family Law Act 1975 (Cth) s 61B, 61C(1); Gillick v West Norfolk Area Health Authority [1986] AC 112; Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218.

13. See Commissioner for Children and Young People, Submission (February 2001) at para 22.01-22.02.

14. See Fowkes v Pascoe (1875) 10 Ch App 343; Nash v Commissioner for Railways [1963] SR (NSW) 357; Re Schneider and Secretary to the Department of Social Security (1986) ASSC 92-085.

15. There are no cases dealing with this specific question. For a more detailed discussion of the notion of “in loco parentis”, see Queensland Law Reform Commission, Consent to health care of young people (Report 51, 1996) Vol 2 at 331-333.

16. See Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 4 (a “parent” is defined to include a person in loco parentis); Guardianship Act 1968 (NZ) s 25(3)(b) and (c) (if there is no guardian in New Zealand, or the guardian is not capable of consenting, consent can be given by a person in New Zealand who has been acting in the place of a parent); Children Act 1989 (UK) s 2(9) (a parent can arrange for some or all aspects of his or her parental responsibility to be met by one or more persons acting on the parent’s behalf) and s 3(5) (a person who has the care of a child, though not having parental responsibility for the child, may do what is reasonable to safeguard or promote the child’s welfare).

17. See Family Law Act 1975 (Cth) s 64B(6), 64C, 65G. There are certain requirements that must be met before the Court will make a parenting order in favour of a person other than the child’s parents: see s 65G.

18. See Children and Young Persons (Care and Protection) Act 1998 (NSW), especially s 34, 43, 46, 48, 49, 61, 71(1)(d), 72, 79(1)(b).

19. See K Murray, “Medical procedures – is the law effective?”, paper presented at the 3^rd National Family Court Conference (Melbourne, 20-24 October 1998) at 1-2; S Brady and S Grover, The sterilisation of girls and young women in Australia: a legal, medical and social context (Human Rights and Equal Opportunity Commission, 1997) at 58-59. Brady and Grover state that, from the time of the High Court’s decision in Marion’s case, in 1992, until 1997, courts and tribunals have authorised a total of 17 sterilisations of young women. This figure compares with data collected by the Health Insurance Commission, which shows that at least 1045 young women have been sterilised between 1992 and 1997. The authors rely on the discrepancy between these figures to argue that the current law is failing to ensure that there is adequate accountability for the sterilisation of young women, and that many young women are being sterilised without the required court or tribunal authority. However, the data collected from the HIC, reflecting a much higher figure for sterilisations than the figure for authorisations given by a court or tribunal, has been subsequently challenged by the Federal Minister for Health in a Senate Report on this issue. The Senate Report claims that, in fact, there was a total of only 22 sterilisations between 1993 and 1999, and that the number of sterilisations performed has declined since 1994. HREOC has responded by pointing out that the data on sterilisations is not very reliable, because the agencies involved in the collection of the data do not follow uniform, consistent, or comprehensive procedures: see generally, S Brady, J Briton and S Glover, The sterilisation of girls and young women in Australia: issues and progress (Human Rights and Equal Opportunity Commission, Sydney, 2001) Ch 2. For government measures taken since the release of the HREOC report to educate and make more accountable those performing sterilisation procedures on young people, see The sterilisation of girls and young women in Australia: issues and progress Ch 5.

20. Several reports have recommended the implementation of a more comprehensive legislative framework, at least in respect of sterilisation procedures: see Family Law Council, Sterilisation and other medical procedures on children: a report to the Attorney General (AGPS, Canberra, 1994) Recommendations 1-4; Law Reform Commission of Western Australia, Consent to sterilisation of minors (Project 77 Part 2, 1994) Ch 11; R Martin, Sterilisation of people with intellectual disability: a discussion paper (Intellectual Disability Services Council, Adelaide, unpublished paper, 1998); S Brady, J Briton and S Glover, The sterilisation of girls and young women in Australia: issues and progress (Human Rights and Equal Opportunity Commission, Sydney, 2001) Ch 6.

21. See Gillick v West Norfolk Area Health Authority [1986] AC 112; Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218. See also Family Law Act 1975 (Cth) s 61B, which reflects the common law principles.

22. See Marion’s case (1992) 175 CLR 218. For a general discussion of parental authority and the best interests of the child, see L Skene, Law and medical practice: rights, duties, claims and defences (2^nd edition, LexisNexis Butterworths, Sydney, 2004) at para 4.28-4.35.

23. See, for example, Carseldine v Director, Department of Children’s Services (1974) 133 CLR 345; Director-General of Social Welfare v J [1976] VR 89; K v Minister for Youth and Community Services [1982] 1 NSWLR 311; Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218 at 258, where the majority cites with approval La Forest J in Re Eve (1986) 2 SCR 388 at 407-417; B v Director-General, Department of Community Services (NSW, Supreme Court, No 3308/86, McLelland J, 5 December 1986, unreported); Department of Community Services v Y [1999] NSWSC 644.

24. See the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ in Marion’s case at 229-263. Note the various grounds of disagreement in the separate judgments of Deane J at 288-308 (court approval must be obtained for sterilisation that is not obviously necessary for the welfare of the child, according to general community standards); McHugh J at 308-326 (parents can give lawful consent to sterilisation if the circumstances are so compelling that the protection of the child’s welfare justifies the procedure, and the parents have no conflict of interest with the child’s interests); Brennan J at 263-288 (neither parents nor Family Court can authorise non-therapeutic sterilisation). The majority judgment in Marion’s case was applied by the High Court in P v P (1994) 181 CLR 583.

25. See Marion’s case (1992) 175 CLR 218 at 239-254. But see the dissenting views of McHugh and Deane JJ, as noted above.

26. Of course, there is legislation in New South Wales that already restricts the performance of a lobotomy, and other forms of psychosurgery: see Mental Health Act 1990 (NSW) Ch 7 Part 1 Div 1. The text addresses the circumstances in which the common law imposes constraints on a parent’s power to consent to medical procedures.

27. See Re Alex: Hormonal Treatment for Gender Identity Dysphoria [2004] Fam CA 297 at para 178 (Nicholson CJ).

28. See Androgen Insensitivity Syndrome Support Group, Submission (22 January 2003) at 14-16.

29. As noted in para 4.7 above, the Children and Young Persons (Care and Protection) Act 1998 (NSW) also makes general provision for the Department of Community Services to take action to protect a child or young person who is in need of care and protection. These provisions could be relied on to remove from a young person’s parents the power to make medical decisions for their child.

30. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175; Children and Young Persons (Care and Protection) Regulation 2000 (NSW) cl 15.

31. Guardianship Act 1987(NSW) s 36(1)(b), in conjunction with s 33.

32. Section 37.

33. Section 33(2).

34. Section 33(1); Guardianship Regulation 2000 (NSW) cl 6.

35. Guardianship Act 1987(NSW) s 45(2).

36. Guardianship Act 1987 (NSW) s 45(3).

37. Section 68F of the Family Law Act 1975 (Cth) provides the Family Court with some guidance on matters to consider when determining the best interests of the child.

38. See majority in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218 at 258-259; P v P (1994) 181 CLR 583 at 598; B and B and Minister for Immigration and Multicultural and Indigenous Affairs [2003] Fam CA 451. But see the recent decision of the High Court concerning the limits of the Family Court’s welfare jurisdiction: Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20.

39. See Marion’s case; P v P.

40. See Marion’s case; P v P. See also Family Court of Australia, A question of right treatment, the Family Court and special medical procedures for children – an introductory guide (1998) (Victorian and Queensland versions) (as at 9 March 2004) «www.familycourt.gov.au/html/medical_procedures.html».

41. See Re A [1993] FLC 92-402.

42. See Re Michael [1994] FLC 92-471.

43. See GMW (Husband) and CMW (Wife) (Family Court, No HB 1447/1996, Hannon J, 21 January 1997, unreported). For further discussion of consent to donation by a young person of body parts, see para 4.26 below.

44. See Re Alex: Hormonal Treatment for Gender Identity Dysphoria [2004] Fam CA 297.

45. See Family Law Act 1975 (Cth) s 68F.

46. See Commissioner for Children and Young People, Submission (15 August 2001) at 3.

47. This is by virtue of s 109 of the Commonwealth Constitution (inconsistency between State and federal laws): see P v P (1994) 181 CLR 583.

48. See K v Minister for Youth and Community Services [1982] 1 NSWLR 311.

49. Department of Community Services v Y [1999] NSWSC 644.

50. See Guardianship Act 1987 (NSW) s 35(1)(c) and 35(1A).

51. See s 247.

52. See Re Anna, Bruno, Courtney, and Deepak [2001] NSWSC 79; Spruill v Director General of the Department of Community Services [2001] NSWCA 413.

53. The Supreme Court has held that the predecessor to the Children and Young Persons (Care and Protection) Act 1998 expressly preserved the parens patriae jurisdiction of the Supreme Court in respect of the general custody and guardianship of children: see Department of Community Services v Y [1999] NSWSC 644 at para 89.

54. See Director-General Department of Community Services v Australian Broadcasting Corporation (NSW, Supreme Court, No 2265/96, McLelland J, 4 June 1996, unreported); Ensby v Director-General Department of Community Services (NSW, Supreme Court, No 4319/93, Bryson J, 21 April 1994, unreported); B v Director-General Department of Community Services (NSW, Supreme Court, No 3308/96, McLelland J, 5 December 1986, unreported); Department of Community Services v Y [1999] NSWSC 644.

55. Department of Community Services v Y.

56. The States referred their legislative powers over children to the Commonwealth in 1987. However, it has recently been argued that this reference of power did not include reference of their welfare power, but was limited to matters relating to the custody, guardianship, access and maintenance of ex-nuptial children. The Family Court’s welfare jurisdiction is therefore based on the legislative powers conferred on the Commonwealth by s 51(xxi) and (xxii) of the Commonwealth Constitution relating to marriage, divorce, and incidental powers: see B and B and Minister for Immigration and Multicultural and Indigenous Affairs [2003] Fam CA 451; [2003] Fam CA 621, considered in AI and AA and Minister for Immigration and Multicultural and Indigenous Affairs [2003] Fam CA 943 (Chisholm J). The decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20 does not appear to touch this aspect of the welfare jurisdiction.

57. This basic proposition is discussed below at para 4.40.

58. See, for example, S Brady, J Briton and S Grover, The sterilisation of girls and young women in Australia: issues and progress (Human Rights and Equal Opportunity Commission, Sydney, 2001); S Brady and S Grover, The sterilisation of girls and young women in Australia: a legal, medical and social context (Human Rights and Equal Opportunity Commission, Sydney, 1997) at 59-60; Family Law Council, Sterilisation and other medical procedures on children: a report to the Attorney General (AGPS, Canberra, 1994); Law Reform Commission of Western Australia, Consent to sterilisation of minors (Project 77 Part 2, 1994); R Martin, Sterilisation of people with intellectual disability (Intellectual Disability Services Council, Adelaide, unpublished paper, 1998).

59. See S Brady, J Briton, S Grover, The sterilisation of girls and young women in Australia: issues and progress; Family Law Council, Sterilisation and other medical procedures on children: a report to the Attorney General; Law Reform Commission of Western Australia, Consent to sterilisation of minors; R Martin, Sterilisation of people with intellectual disability.

60. Or equivalent tribunal of another State. See S Brady, J Briton and S Grover, The sterilisation of girls and young women in Australia: issues and progress Ch 6; Law Reform Commission of Western Australia, Consent to sterilisation of minors; R Martin, Sterilisation of people with intellectual disability at 6. See also D Tait, T Carney, and K Deane, “Legal resolution of sterilisation: the role of Guardianship Tribunals in NSW and Victoria” (1994) 8 Australian Journal of Family Law 141; T Carney and D Tait, The Adult guardianship experiment: tribunals and popular justice (Federation Press, Sydney, 1997).

61. See Guardianship Act 1987 (NSW) s 49 for the composition of the Tribunal.

62. See Family Law Council, Sterilisation and other medical procedures on children: a report to the Attorney General at para 5.06-5.08; A Nicholson, M Harrison and D Sandor, “The role of the Family Court in medical procedure cases” (1996) 2 Australian Journal of Human Rights 242 at 252; D Tait, T Carney, and K Deane, “Legal resolution of sterilisation: the role of Guardianship Tribunals in NSW and Victoria” 161.

63. See Guardianship Act 1987 (NSW) s 55, 58(1).

64. The Family Law Council noted, in 1994, that the cost of bringing an application in the Family Court can be prohibitive to many families: see Family Law Council, Sterilisation and other medical procedures on children: a report to the Attorney General at para 5.45.

65. See Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175(1); Guardianship Act 1987 s 35(1).

66. See Family Law Council, Sterilisation and other medical procedures on children: a report to the Attorney General (AGPS, Canberra, 1994) at para 5.36-5.46; A Nicholson, M Harrison, and D Sandor, “The role of the Family Court in medical procedure cases” (1996) 2 Australian Journal of Human Rights 254-255.

67. The Family Court has developed a protocol dealing with special medical procedures for children, which stipulates that parties must take part in a dispute resolution process before a judge will hear the case in court. The main form of dispute resolution in this context is family group conferencing. See Family Court of Australia, A question of right treatment, the family court and special medical procedures for children – an introductory guide (1998) (Victorian version) at 20-22 (as at 9 March 2004) «www.familycourt.gov.au/html/medical_procedures.html».

68. See Re Alex: Hormonal Treatment for Gender Identity Dysphoria [2004] Fam CA 297 (Nicholson CJ).

69. See, for example, Guardianship Act 1987 (NSW) s 45, which sets out the matters for the Tribunal to consider in deciding whether to authorise certain procedures, such as sterilisation.

70. See Family Law Council, Sterilisation and other medical procedures on children: a report to the Attorney General (AGPS, Canberra, 1994) Recommendation 3, para 4.53; Law Reform Commission of Western Australia, Consent to sterilisation of minors (Report, Project 77 Part 2, 1994) Chapter 7; S Brady and S Grover, The sterilisation of girls and young women in Australia: a legal, medical and social context (Human Rights and Equal Opportunity Commission, Sydney, 1997) at 10-11.

71. Family Law Council, Sterilisation and other medical procedures on children: a report to the Attorney General; Law Reform Commission of Western Australia, Consent to sterilisation of minors.

72. Family Law Council, Sterilisation and other medical procedures on children: a report to the Attorney General; Law Reform Commission of Western Australia, Consent to sterilisation of minors; S Brady and S Grover, The sterilisation of girls and young women in Australia: a legal, medical and social at 10-11, which all supported some form of external authorisation.

73. Section 175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), which requires authorisation from the Guardianship Tribunal before “special medical treatment” is carried out (such as sterilisation), applies only in respect of young people below the age of 16. The equivalent provisions in Chapter 5 of the Guardianship Act 1987 (NSW) relating to authorisation for special treatment apply only in respect of people aged 16 and over, who are not competent to consent to the treatment themselves. Presumably, therefore, young people aged 16 and above, who are sufficiently mature to understand the treatment proposed, could consent to such treatment.

74. See Chapter 2 at para 2.32-2.34 for a discussion of the concept of “best interests”.