• Young people in out-of-home care
• Young people from a non-English speaking background
• Young Aboriginal and Torres Strait Islander people
• Young people who are homeless
• Young people in juvenile detention centres
• Young people whose parents are not competent to make medical decisions

7.1 Chapter 6 gave special consideration to the needs of young people with intellectual disabilities and/or mental illnesses in respect of their medical treatment. This chapter considers the legal framework governing consent to, and refusal of, medical treatment as it relates to several other groups of young people with special needs. These groups are:

• young people in out-of-home care;
• young people from a non-English speaking background;
• young people who are Aboriginal or Torres Strait Islander;
• young people who are homeless;
• young people in juvenile detention centres; and
• young people whose parents are not competent to make medical decisions.

Issue 7.1

Are there any other groups of young people, besides those discussed in Chapters 6 and 7, that require special consideration in formulating a legal framework for making decisions about their medical treatment?

7.3 There are specific legislative provisions regulating, to a limited extent, the power to consent to medical treatment for young people in “out-of-home” care. These provisions are found in the Children and Young Persons (Care and Protection) Act 1998 (NSW).

Meaning of “out-of-home care”

7.4 A young person, or child, is in “out-of-home” care if he or she is:

• in the residential care and control of a person who is not a parent or a relative (whether or not for money);
• at a place other than the child’s or young person’s usual home;
• for a period of more than 14 days (if the child or young person is in the person’s care and control because of an order from the Children’s Court), or for a period of more than 28 days in total over a 12 month period.¹

Power to consent to medical treatment

The authorised carer

7.6 Out-of-home care can only be provided by an “authorised carer”.⁶ The legislation, together with the subordinate legislation, set up procedures for a person to be authorised as an authorised carer.⁷

7.7 An authorised carer has the authority to consent to:

• medical treatment, not involving surgery, for a child or young person in his or her care, on the advice of a medical practitioner;⁸
• medical treatment involving surgery, if a medical practitioner certifies in writing that the treatment needs to be carried out as a matter of urgency in the best interests of the child or young person;⁹
• non-urgent medical treatment involving surgery, if the authorised carer is delegated that authority in accordance with the legislation.¹⁰

7.9 If an authorised carer has the authority to consent to medical treatment for a child or young person in his or her care, a medical practitioner can rely on that consent as if it were a consent given by the parent, for the purpose of defending a civil claim for battery or assault as provided for in s 49 of the Minors (Property and Contracts) Act 1970 (NSW).¹² The legislative provision that grants this immunity in respect of children and young people in out-of-home care is not clear. Under s 49 of the Minors (Property and Contracts) Act 1970, the power of parents to consent to medical treatment for their child is limited to young people below the age of 16, that is, a parent can consent to medical treatment for their child until that child is 16. However, an authorised carer is authorised by legislation to consent to medical treatment for any person in his or her care who is below the age of 18. By virtue of that authority, does the immunity granted to medical practitioners to treat young people in out-of-home care, based on the consent of their authorised carer, extend until such young people have reached the age of 18, rather than 16, whether or not the young person objects to the treatment proposed?¹³ If this is the case, it seems inconsistent, and discriminatory, if young people in out-of-home care could have their objections to medical treatment overridden by the consent of an authorised carer, where other young people aged 16 and above could not.

The young person

7.10 Presumably, the power of a mature young person to give a personal consent to medical treatment, as provided for at common law, and reflected in s 49 of the Minors (Property and Contracts) Act 1970, is not altered by the legislation above in respect of young people in out-of-home care.

The parents

7.11 Whether the parents of a child in out-of-home care retain any power to consent to the medical treatment of their child depends on the way in which parental responsibility is allocated upon the child entering into out-of-home care. In situations where a child or young person is placed in out-of-home care upon an order of the Children’s Court, the Director-General must usually prepare a care plan which details the allocation of parental responsibility between the Minister of Community Services and the parents. The Children’s Court can make its own orders regarding the allocation of parental responsibility.¹⁴ Similarly, a care plan must be prepared for children and young people entering into voluntary out-of-home care (other than under a temporary care arrangement), which plan would detail the allocation of parental responsibility.¹⁵ For children or young people placed in out-of-home care under a temporary care arrangement, the legislation specifies that the Director-General has the “care responsibility” of the child or young person, which includes the authority to consent to his or her medical treatment.¹⁶ It does not seem clear whether the exercise of this care responsibility operates to remove the power to consent from parents of children in a temporary care arrangement.

7.12 There is one final legislative provision dealing with the “special medical examination” of children and young people in out-of-home care.¹⁷ This provision imposes special requirements for a valid consent to be given to certain types of medical examination on children and young people who are in out-of-home care in accordance with an order of the Children’s Court, and applies to certain vaginal, penile, and anal examinations. This section has not yet commenced operation, and is being considered for repeal. As such, it will not be discussed here.

Issue 7.2

Is the legislative framework governing consent to medical treatment for children and young people in out-of-home care sufficiently clear?

7.13 In 2001, approximately 20% of the population in New South Wales spoke a language other than English at home.¹⁹ Young people who come from a non-English speaking background often face special health concerns and barriers to receiving appropriate medical treatment. Young people who have migrated to Australia may suffer significant mental health problems, as a result of trauma suffered in their country of origin, as well as the stress of migrating and resettling. Young people from a non-English speaking background sometimes suffer stress as a result of racism, English language difficulties, and intergenerational and intercultural conflicts. Adolescents from a non-English speaking background face the usual changes and challenges characteristic of puberty, while also often having to cope with different and conflicting behavioural expectations from their family and Australian-born peers.

7.14 Young people from a non-English speaking background may face particular barriers to receiving medical services. Poor English language skills can affect either their, or their parents’, capacity to seek out and consent to medical treatment. Cultural beliefs and perceptions of certain illnesses, especially mental illness, may create a stigma in seeking help. Some non-Western cultures do not readily conceive of the notion of adolescence as a time of attaining a degree of independence from the family and an individual identity, and may not accept that a person below 18 could be judged competent to make his or her own medical decisions, without the assistance of parents and other family members.

7.15 It is open to question whether these issues should affect the formulation of a legal framework governing consent to, and refusal of, medical treatment of young people, or whether, instead, they should form the basis of strategies for education in the community and in the medical profession, and for the delivery of culturally sensitive health services.²⁰

Issue 7.3

Are there issues particular to young people from a non-English speaking background that should be taken into account in formulating a legal model to govern consent to, and refusal of, medical treatment for young people?

7.16 Aboriginal and Torres Strait Islander young people have the poorest health of all young Australians. Indeed, across all age groups, they face a higher risk of disease or injury and have higher mortality rates than other young people.²¹ A number of specific health problems occur among Indigenous children and teenagers at a particularly high rate and contribute to the overall levels of poor health. For example, 11% of Indigenous young people, aged 15 years and under, suffer from ear and hearing problems. By contrast, only 2% of non-Indigenous girls and 3% of non-Indigenous boys suffer the same problems.²²

7.17 The high incidence of poor health among Indigenous young people is accompanied by the disproportionate rate at which these children and teenagers have additional special needs, which may affect their interactions with medical practitioners. In New South Wales, Indigenous young people, aged 10–17 years, are 17 times more likely to be in juvenile corrective institutions than non-Indigenous young people.²³ The figures are similarly skewed in relation to homelessness²⁴ and to young Indigenous women who are parents themselves.²⁵

7.18 Indigenous young people also suffer from disproportionately high levels of mental illness.²⁶ Within this area, elevated rates of youth suicide are a major concern. This is particularly so with respect to Indigenous young men, aged 15–19 years, who commit suicide at a rate four times higher than their non-Indigenous counterparts.²⁷

7.19 A number of factors contribute to the elevated rates of poor health among Indigenous young people. Among these, disadvantaged socio-economic status and barriers to accessing health care play a significant role.²⁸ Commonly encountered barriers include a lack of culturally appropriate health care,²⁹ affordability and communication difficulties.³⁰

Issue 7.4

Are there issues particular to Indigenous young people that should be taken into account in formulating a legal model to govern consent to, and refusal of, medical treatment for young people?

7.20 Perhaps more than any other group of young people, the health concerns of our homeless youth are the most acute, and their access to adequate health services most limited. As one medical practitioner has observed, “[h]omelessness is not conducive to good health”.³¹ Back in 1989, the number of young people in Australia who were homeless or at serious risk was estimated to be at least 20,000 to 25,000, with the actual figure more likely to be closer to 50,000 to 70,000.³² The number of young people who are homeless appears to be increasing.³³

7.21 Young people leave, or are thrown out of, their family home for a number of reasons. Often they leave to escape physical or sexual abuse. There may be an intolerable level of conflict and tension at home, and family relationships may have broken down. Other factors, such as substance abuse within the family, poverty, the need to find work, and parents remarrying, are said sometimes to contribute to a young person leaving home.³⁴ A proportion of the young homeless population are refugees, who have arrived in Australia without parents or other family networks, and are expected somehow to survive on their own.³⁵

7.22 Homeless young people suffer a wide range of health problems.³⁶ Their itinerant lifestyle tends to lead to malnutrition, poor hygiene and infections. They often suffer from poor dental health, a high incidence of skin complaints, such as scabies and eczema and ear infections. In an effort to survive, many homeless young people become involved in prostitution, exposing them in turn to other high-risk activities, such as drug taking and violence. They risk contraction of sexually transmitted diseases, such as genital herpes, Chlamydia and HIV, as well as drug overdose and infections contracted through needle use. Homeless young people also tend to suffer significant mental health problems. They may already have incurred emotional and psychological injuries in the time leading up to leaving their family home, and the stress of their current lives can give rise to insomnia, depression, the risk of suicide, and behavioural disturbances. Homeless young people are said to be generally reluctant to use health services, for a number of reasons, such as distrust of medical practitioners, social workers, and other “establishment” figures; concerns about confidentiality; and, at a most basic level, lack of money or a Medicare card.

7.23 The terms of the Law Reform Commission’s reference do not extend to a detailed consideration of the health, and other, needs of homeless young people. Other reviews and commentators have already noted the plight of our homeless youth, and have urged greater government action to establish and fund more support services.³⁷ What the Commission can do, however, is to consider ways of ensuring that the law allows for available health services to be as accessible as possible to homeless young people who decide to make use of them. The current law governing consent to medical treatment may create obstacles, or at least uncertainties, in the provision of treatment to this group of young people, who are usually separated from their parents and families. There are no specific provisions, either in legislation or at common law, dealing with consent to medical treatment of young people who are homeless and estranged from their parents.³⁸ Moreover, medical practitioners, and other health professionals, need to know their legal obligations and potential liability in treating young people who are homeless and have no contact with their parents.

Issue 7.5

(a) In practice, do medical practitioners generally treat homeless young people based on their consent alone?

(b) What steps (if any) do medical practitioners take to treat a homeless young person who refuses medical treatment?

(c) Should there be special provisions in the law to deal with consent to medical treatment for homeless young people? If so, what should these provisions be?

7.24 Young people who have been charged with, or convicted of, committing a criminal offence may be remanded into custody, or sentenced to a period of custody, in a detention centre.³⁹ There are nine detention centres in New South Wales. The average daily number of young people in detention centres on any given day in 2002-2003 was 290, with over 90% of the detainee population being male and about 39% being Aboriginal or Torres Strait Islander.⁴⁰

7.25 Young people in detention commonly face significant mental and physical health problems. Many come from a background of broken family relationships, have experienced physical, emotional, and sexual abuse, have dropped out of school and are described as frequently confused, damaged, angry and alienated. Many have survived periods of homelessness. Many abuse drugs or alcohol.

7.26 The administration and delivery of health services to young people in detention centres was recently transferred from the Department of Juvenile Justice to Corrections Health Services, NSW Health. Registered nurses in detention centres provide health care services to detainees, and local medical practitioners visit each centre regularly to provide young people with medical treatment and assessment. Consultant psychiatrists are also engaged through Corrections Health when necessary. The decision to transfer health services for young detainees to Corrections Health was aimed, among other things, at facilitating the integration of health services in detention centres into mainstream public health services across New South Wales, and at formalising links between detention centres and external health care providers.

7.27 There is no clear legislative framework, which specifically regulates the medical treatment of young people in detention.⁴¹ The Children (Detention Centres) Act 1987 (NSW), in conjunction with the Children (Detention Centres) Regulation 2000, governs the operation and administration of juvenile detention centres. They make some provision for the medical treatment of young people in detention. For example, the Director-General of the Department of Juvenile Justice is responsible for ensuring, among other things, that adequate arrangements exist to maintain the physical, psychological, and emotional well-being of detainees.⁴² Detainees are deemed to be in the custody of the centre manager of the detention centre.⁴³ Young people must be medically assessed on first arriving at a detention centre,⁴⁴ and must be supplied with such medical and dental treatment as is necessary, in the opinion of the medical officer, dental officer, or registered nurse, to promote and maintain the detainee’s health and well-being.⁴⁵ A detainee may be removed to a hospital, or some other specified place, for medical treatment, upon either the order of the Director-General, or, in an emergency, by order of the centre manager of the detention centre.⁴⁶ The detainee may only be discharged from the hospital, or other specified place, if a medical superintendent, or other person in charge of the hospital, or medical practitioner, certifies that the detainee may be discharged.⁴⁷ Provisions such as these do not seem to consider the possibility of requiring the consent of the young person in question, or even his or her parents, before providing the particular medical treatment, and certainly would not appear to allow much opportunity for the young person to refuse such treatment. In contrast, legislation governing the administration of detention centres for adult prisoners does appear to envisage some right of the adult prisoner generally to consent, or refuse, medical treatment.⁴⁸

Issue 7.6

Is the existing law sufficiently clear as to the rights of young people, and others, in respect of the medical treatment of young people in juvenile detention centres?

7.28 Is there a need for special rules governing the power to consent to, and refuse, medical treatment for young people whose parents are not themselves competent to make medical decisions? Parents may not be legally competent to make medical decisions if, for example, they are themselves below the age of 18, and not considered sufficiently mature to pass the Gillick test, or if they suffer from a mental illness or intellectual disability, which impairs their capacity to understand.

7.29 Short of resorting to an application for a care order under the child protection legislation, there are no special provisions in the current law to facilitate the provision of medical treatment for young people who are not legally competent to consent to or refuse it, and whose parents are similarly not competent. For young parents who are below the age of 18, their status as parents does not make them automatically competent to make decisions about their own medical care. As with young people generally, each young parent must be assessed as to the level of his or her maturity, understanding and intelligence to determine whether or not he or she can give a personal consent to his or her own medical treatment.⁴⁹

7.30 Similarly, there are no specific provisions that deem a young person automatically competent to consent to or refuse medical treatment on behalf of his or her child. Legislation does vest parents generally with the obligations and powers inherent to exercising parental responsibility over their children, with no distinction made between parents who are adults and parents who are below 18.⁵⁰ Section 49(1) of the Minors (Property and Contracts) Act 1970 (NSW) provides for a medical practitioner to rely on the consent of a parent to treat a person below 16 without incurring civil liability for assault or battery, and “parent” is not defined (and certainly not expressly confined to parents aged 18 and above).⁵¹ However, the Commission does not consider that the effect of s 49(1) is to make young parents automatically competent to consent. Instead, the validity of a parent’s consent under s 49(1) should be read as qualified by the common law requirement that the parent’s consent be “true”, and not affected by the parent’s own mental incapacity by reason of, for example, immaturity.

7.31 Similarly, there are no specific legal mechanisms for providing medical treatment to children who are not legally competent to make their own medical decisions, and whose parents are also legally incompetent to consent, or refuse, by reason of, for example, a mental illness or intellectual disability. The Children and Young Persons (Care and Protection) Act 1998 (NSW) makes general provision for children or their parents to request assistance to enable the child to remain in his or her family’s care,⁵² and also allows for intervention by the Department of Community Services, and the Children’s Court, in ensuring that a child’s welfare is protected.⁵³ These provisions could be relied on to vest the parental responsibility to make medical decisions on behalf of a child in someone other than the child’s parents, if the parents were not competent to make those decisions themselves. In some situations, however, these may be considered fairly draconian measures to have to take.

7.32 Previous reviews of this area have recommended that legislation make specific provision in relation to the power of young parents to consent to medical treatment for their child. One review recommended that a young woman (below 18) who has a child should be competent to consent to health care both for herself and for her child.⁵⁴ Another review recommended that a parent under 18 should be able to consent to, or refuse, health care of his or her child if the parent understands the nature and consequences of the health care, and communicates his or her decision about the health care in some way.⁵⁵ It is difficult to see, however, how this recommendation differs from the existing common law position.

Issue 7.7

(a) Should there be special provision in legislation to allow parents who are below the age of 18 to consent to and refuse medical treatment for their child?

(b) Should there be special provision in legislation, additional to existing provisions, to allow someone other than a child’s parent to consent to or refuse medical treatment if the parent is not competent to consent or refuse?

1. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 135.

2. See Children and Young Persons (Care and Protection) Regulation 2000 cl 17. Section 135(2) of the Act also excludes from the meaning of out-of-home care the care and control provided by a person in his or her capacity as a licensed provider of children’s services. This includes, for example, day care centres: Children and Young Person (Care and Protection) Act 1998 (NSW) s 200.

3. Section 43, 44.

4. Section 46, 69, 71, 76.

5. Chapter 8 Part 3.

6. Section 136.

7. See Children and Young Persons (Care and Protection) Act 1998 (NSW) s 137; Children and Young Persons (Care and Protection) Regulation 2000 cl 20-22.

8. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 157(1)(a).

9. Section 157(1)(b).

10. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 157(2) and s 157(2) Note.

11. Section 157 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) refers to child or “young person”. “Young person” is defined in s 3 of the Act as a person aged 16 or 17.

12. See Children and Young Persons (Care and Protection) Act 1998 (NSW) s 177. Section 177 is headed “Ordinary medical and dental treatment”, although the term “medical treatment” is not qualified by the word “ordinary” in the actual text of the provision. “Ordinary medical treatment” is not defined, but presumably the word “ordinary” was used to contrast this provision with the provision setting down the requirements for consent to “special medical treatment” in the preceding s 175 of the Act. See Chapter 2 at para 2.15-2.17 for a discussion of s 49.

13. This is the way in which the Children’s Commissioner has interpreted the effect of the legislation: see Commissioner for Children and Young People, Submission (February 2001) at para 8.02.

14. See Children and Young Persons (Care and Protection) Act 1998(NSW) s 78, 79, 81.

15. Section 155(2).

16. Section 154, 157.

17. Section 176.

18. Note that NSW Health prefers the term, “culturally and linguistically diverse community”, rather than people from a non-English speaking background.

19. See Australian Bureau of Statistics, 2001 Census of population and housing: selected social and housing characteristics for statistical Local Areas, NSW and Jervis Bay Territory (as at 9 March 2004) «www.abs.gov.au/Ausstats/abs%40.nsf/e8ae5488b598839cca25682000131612/6f61db97cfa2e96fca256c3100814657!OpenDocument».

20. Consideration of issues involving health services to people of non-English speaking backgrounds has already been widely discussed and included in many government policies regarding the delivery of health services: see, for example, NSW Health, NSW strategy: making mental health better for children and adolescents (1999) strategy 3.4.3; NSW Health, Caring for mental health in a multicultural society: a strategy for the mental health care of people from culturally and linguistically diverse backgrounds (1998); Western Melbourne Division of General Practice, Enhancing Refugee Young People’s Access to Health Services(2000); J Luntz, Report on the usage of child and adolescent mental health services by NESB adolescents and their families (Child and Adolescent Mental Health Services, 1998) (as at 9 March 2004) «www.mmha.org.au/library/services/specialist_reports/camhs_main.html».

21. F Al-Yaman, M Bryant and H Sargeant, Australia’s children: their health and wellbeing 2002 (AIHW, Canberra, 2002) at 253.

22. Council on the Cost of Government, NSW government programs for Aboriginal people: service efforts and accomplishments 1998 (CCG, Sydney, 1998) at 63.

23. Australian Institute of Criminology, Australian crime: facts and figures 2002 (AIC, Canberra, 2002) at 71.

24. Australian Institute of Health and Welfare, Young homeless people in Australia 2001–2002 (AIHW, Canberra, 2003) at 12-13.

25. In Australia in 2002, the fertility rate of Indigenous women aged 15–19 was more than four times that of all teenage women in the same age group: Australian Bureau of Statistics, Births, Australia 2002 (ABS, Canberra, 2003) at 20.

26. For example, in 1999–2000, Indigenous girls aged 5–9 years were hospitalised for mental and behavioural disorders at a rate 3.6 times that for non-Indigenous girls: Australia’s children: their health and wellbeing 2002 at 200.

27. NSW Department of Health, Prevention initiatives for child and adolescent mental health: NSW resource document (NSW Department of Health, Sydney, 2002) at 52.

28. Australian Bureau of Statistics and Australian Institute of Health and Welfare, The health and welfare of Australia’s Aboriginal and Torres Strait Islander Peoples 2003 (ABS, Canberra, 2003) at 33 and 54.

29. For example, medical practitioners may not be familiar with extended family networks, in which family members, other than a parent, have primary responsibility for a child’s welfare: Human Rights and Equal Opportunity Commission, Our homeless children: report of the National Inquiry into Homeless Children (AGPS, Canberra, 1989) at 129.

30. Australian Bureau of Statistics and Australian Institute of Health and Welfare, The health and welfare of Australia’s Aboriginal and Torres Strait Islander Peoples 2003 (ABS, Canberra, 2003) at 54-63.

31. See D Bennett and L Rowe, What to do when your children turn into teenagers (Doubleday, Sydney, 2003) at 289.

32. See Human Rights and Equal Opportunity Commission, Our homeless children: report of the National Inquiry Into Homeless Children (AGPS, Canberra, 1989) Chapter 6.

33. The Australian Bureau of Statistics found that, on census night 2001, there were 99,900 homeless people in Australia, where “homelessness” included anyone in need of safe and secure accommodation, rather than just those actually sleeping on the streets. Of that total number, 10% were below the age of 10, and 36% were young people aged between 12 and 24 years: see C Chamberlain and D MacKenzie, Counting the homeless, 2001 (ABS, Canberra, 2001). See also the report of the Australian Institute of Health and Welfare, which found that, in 2001-2002, 36% of all clients of the Supported Accommodation Assistance Program (designed to provide temporary supported accommodation to homeless people) were aged between 12 and 25: see Australian Institute of Health and Welfare, Young homeless people in Australia 2001-2002: a report from the SAAP national data collection (Canberra, 2003) at 1, 3. In Youth homelessness 2001, it was estimated that, on any given day in 2001, there were 26,060 homeless youth in Australia (aged 12-18), of which 12,230 remained in the school system. This figure represented an overall increase of 8.4% of the homeless youth population since 1994: see C Chamberlain and D MacKenzie, Youth homelessness 2001 (RMIT, Melbourne, 2002).

34. See Human Rights and Equal Opportunity Commission, Our homeless children: report of the National Inquiry Into Homeless Children (AGPS, Canberra, 1989) Chapter 8.

35. See P Rice, A Rice and P Dhamarak, “‘Some day, when my health is good …’: The experiences of young Southeast Asian refugees in Australian schools” (1993) Youth Studies Australia 39 at 43; A Chambon, “Refugee families’ experiences: three family themes – family disruption, violent trauma and acculturation” (1989) 8 Bonus Issue 3 at 6.

36. See Human Rights and Equal Opportunity Commission, Our homeless children: report of the National Inquiry Into Homeless Children (AGPS, Canberra, 1989) at para 19.419.17; D Bennett and L Rowe, What to do when your children turn into teenagers (Doubleday, Sydney, 2003) at 289-290.

37. See, for example, Human Rights and Equal Opportunity Commission, Our homeless children: report of the National Inquiry Into Homeless Children (AGPS, Canberra, 1989), especially Chapter 24; C Chamberlain and D MacKenzie, Youth Homelessness 2001 (RMIT, Melbourne, 2002) Chapter 5; Salvation Army, Response to Chamberlain and MacKenzie’s youth homelessness census 2001 [2002] (as at 9 March 2004) («www.salvationarmy.org.au/media/2002/020715_homeless.asp»).

38. The Children and Young Persons (Care and Protection) Act 1998 (NSW) includes provisions relating specifically to homeless children and young people. However, these deal with voluntary reporting to the Director-General of a child or young person who is homeless: s 120-121. The Act also provides for the making of compulsory assistance orders for children and young people to protect them from life-threatening or seriously self-destructive behaviour, which could be applied to assist homeless young people: see Chapter 7 Part 3. These provisions do not deal with issues of consent.

39. A “child” (below the age of 18), or a person charged before the Children’s Court, who is an accused person within the meaning of the Bail Act 1978 (NSW) and who has not been released on bail, must generally be detained in a detention centre: see Children (Detention Centres) Act 1987 (NSW) s 3, 9. Likewise, a person found guilty of an offence before the Children’s Court may be placed in a detention centre for a period of less than two years: Children (Detention Centres) Act 1987 (NSW) s 3, 9; Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(g). A person who is convicted of an indictable offence by a court other than the Children’s Court, who was below the age of 18 when he or she committed the offence, and was under the age of 21 when charged, and has been sentenced to a term of imprisonment, may be ordered to serve some or all of that term of imprisonment in a detention centre: Children (Criminal Proceedings) Act 1987 (NSW) s 16, 19; Children (Detention Centres) Act 1987 (NSW) s 3, 9. A person under the age of 21 who is on remand or in custody in an adult prison may be directed to be transferred from prison to a detention centre: Children (Detention Centres) Act 1987 (NSW) s 3, 9, 10.

40. The average daily number is based on the number of young people in custody on the last day of each month for that year. See NSW Department of Juvenile Justice, Annual Report 2002-2003 at 8-9, 16-17. See also the Director-General’s message on the Department of Juvenile Justice website (as at 9 March 2004) «www.djj.nsw.gov/Director_General_Message.html»; and the Corrections Health website (as at 9 March 2004) «www.chs.health.nsw.gov.au/areas/corrections/profile/comm_profile.html».

41. Note that juvenile detention centres are not considered “out-of-home” care so as to come within legislative regime governing the treatment (including medical treatment) of young people and children in out-of-home care: see Children and Young Persons (Care and Protection) Regulation 2000 cl 17.

42. See Children (Detention Centres) Act 1987 (NSW) s 14(a).

43. See Children (Detention Centres) Act 1987 (NSW) s 15.

44. See Children (Detention Centres) Regulation 2000 cl 7(2).

45. See Children (Detention Centres) Regulation 2000 cl 7(1).

46. See Children (Detention Centres) Act 1987 (NSW) s 25(1).

47. See Children (Detention Centres) Act 1987 (NSW) s 25(4).

48. Such right may be recognised by implication only. Section 73 of the Crimes (Administration of Sentences) Act 1999 (NSW) makes provision for the compulsory medical treatment of (adult) inmates where the Chief Executive Officer of Corrections Health Service consider that it is necessary to do so in order to save the inmate’s life or prevent serious damage to the inmate’s health, and such medical treatment is taken to have been carried out with the inmate’s consent.

49. See Chapter 2.

50. See Family Law Act 1975 (Cth) s 61C (see also s 61B for a definition of “parental responsibility”). Section 3 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) also refers to “parental responsibility” as the duties, powers, responsibilities and authority which parents have in relation to their children, with no distinction made for parents who are below the age of 18.

51. See Chapter 2 at para 2.15-2.17 for a discussion of s 49.

52. Section 21.

53. See Chapters 4 and 5.

54. Institute of Law Research and Reform, University of Alberta, Consent of minors to health care (Report 19, 1975) Recommendation 3.

55. Queensland Law Reform Commission, Consent to health care of young people (Report 51, 1996) Volume 2 at 328.