Issue 1.1

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

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

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

Issue 2.1

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

Issue 2.2

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

Issue 2.3

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

Issue 2.4

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

Issue 2.5

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

Issue 2.6

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

Issue 3.1

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

Issue 3.2

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

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

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

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

Issue 3.3

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

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

Issue 3.4

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

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

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

Issue 3.5

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

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

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

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

Issue 3.6

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

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

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

Issue 3.7

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

Issue 3.8

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

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

(c) If Model Two were adopted, what would be an appropriate age to fix as the cut-off age? The most common choice in other jurisdictions is 16, although some jurisdictions have fixed the age at 14.

Issue 3.9

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

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

Issue 3.10

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

Issue 3.11

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

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

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

Issue 3.12

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

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

Issue 3.13

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

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

Issue 3.14

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

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

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

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

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

Issue 3.15

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

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

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

Issue 3.16

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

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

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

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?

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?

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?

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?

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?

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?

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?

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?

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?

Issue 5.1

(a) Does s 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) operate effectively in its present form? In particular, is s 174 sufficiently comprehensive and clear about the situations in which young people can be provided with emergency medical treatment without a preliminary requirement for consent, or should general statutory guidelines be made for the guidance of those involved in the emergency medical treatment of young people?

(b) Should parents or young people be able to refuse emergency medical treatment (of their child)? If so, in what circumstances?

(c) Generally, should the law regarding medical emergencies be different for young people than for adults in the same situation?

Issue 5.2

Should clearer guidelines be given to medical practitioners as to when they have to respond to emergency situations involving young people who are not their patients?

Issue 5.3

Does Part 8 of the Civil Liability Act 2002 (NSW) sufficiently protect first responders in emergencies from civil liability? For example, does Part 8 make sufficiently clear that medical practitioners and the public are not liable for assault and battery for emergency health care treatment? Should first responders be protected from liability for assisting an injured person below 18 years, who refuses, or whose parent refuses, emergency assistance?

Issue 5.4

(a) Should a child or young person ever be forced to undergo a medical examination against their will, and without their parent’s consent?

(b) If so, in what circumstances should a child or young person be forced to undergo a medical examination? What type of medical examination should they be forced to undergo against their will?

(c) Is the present law covering medical examinations in cases of suspected child abuse sufficient?

(d) Should medical examinations under s 173 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) be more aligned with the consensual approach taken to medical examinations of children and young people under Children’s Court “assessment orders” (s 53 of the Children and Young Persons (Care and Protection) Act 1998)? Is there a reason why a s 173 medical examination should be different?

Issue 5.5

Should s 22 of the Public Health Act 1991 (NSW) have specific provisions governing young people with a category 4 or 5 contagious disease?

Issue 5.6

(a) Should there be greater clarity and consistency across educational and other institutions caring for young persons, as to any requirement/s for parental consent/s to minor medical treatments for their children, such as the administering of first aid or non-prescription medications?

(b) Should educational and other institutions be required first to obtain a young person’s consent, in the case of an ‘older’ young person, before providing minor medical treatment? If so, how should such a young person be defined?

(c) Should legislation define exactly what is meant by “minor” medical treatment?

Issue 6.1

For young people below 14 years old who have mental illnesses, should the objection of one parent be sufficient to bar their voluntary admission in a psychiatric hospital? Alternatively, should there be other factors to consider: for example, the child’s level of understanding concerning his or her proposed hospitalisation, the opinion of medical practitioner(s) who have been treating the young person, the wishes of the other parent and the child’s best interests?

Issue 6.2

Should the provisions regarding the right of young people to consent to voluntary admission for psychiatric treatments in hospitals be the same as the general rules on young people’s competence to consent to medical treatment?

Issue 6.3

(a) Should young people be considered potentially competent to consent to Electro Convulsive Therapy (ECT)?

(b) Should the provisions of the Mental Health Act 1990 (NSW) concerning young people’s competence to consent to ECT, and treatment in the absence of such consent, be the same as those for psychosurgery?

Issue 6.4

Should special medical treatment in the Mental Health Act 1990 (NSW) include those treatments listed in the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Guardianship Act 1987 (NSW)?

Issue 6.5

Should the Mental Health Review Tribunal have the authority to consent to the performance of special medical treatment on patients below 16 years old?

Issue 6.6

(a) Are there issues particular to young people with intellectual disabilities that should be taken into account as regards consent to, and refusal of, medical treatment while they are in out-of-home care?

(b) Are there types of medical treatment/therapy particularly relevant to this group of young people that require special rules on consent?

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?

Issue 7.2

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

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?

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?

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?

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?

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?

Issue 8.1

Should specific guidelines be developed to assist medical practitioners in discharging their duty to inform under-age patients about the material risks involved in a proposed medical treatment?

Issue 8.2

Do the duties to obtain a patient’s consent and to warn the patient of material risks of a proposed treatment create confusion in practice about what is required of medical practitioners when dealing with under-age patients?

Issue 8.3

Should legislation expressly provide that, where consent is a legal prerequisite for the provision of medical treatment, failure by a medical practitioner to obtain a valid consent is a ground for disciplinary action?

Issue 8.4

(a) Should the law exonerate a medical practitioner from liability and/or disciplinary action for making an honest and reasonable mistake about a young patient’s competence to consent to medical treatment?

(b) Should the law exonerate a medical practitioner from liability and/or disciplinary action for making an honest and reasonable mistake about whether or not medical treatment is in the best interests of a young person?

Issue 8.5

(a) Is the current law adequate in imposing liability on medical practitioners for treating young people without a valid consent (where consent is legally required), where the medical treatment in question does not involve any physical contact?

(b) Should the law impose liability on medical practitioners for treating young people without the requisite consent, where the medical treatment in question does not involve any physical contact?

Issue 9.1

(a) Should young people have the right to keep their health information confidential from their parents?

(b) If so, should such a right be confined to situations where a young person can validly consent to their medical treatment? Or should it extend to situations where the young person, while not competent to consent to the treatment in question, had an understanding of the concept of secrecy and gave information to the medical practitioner with an expectation that it would not be disclosed?

(c) What should be the significance of the nature of the health information? Should a young person’s right to keep their health information confidential from their parents apply only to certain classes of health information, for example those relating to reproduction and sexual health?

Issue 9.2

(a) What should be the test in determining whether or not a young person can give a valid consent to disclose his or her health information?

(b) Should young people who are competent to consent to medical treatment automatically be competent to consent to the disclosure of the health information obtained from that particular treatment?

(c) Should young people who are not competent to consent to medical treatment be able to provide a valid consent to the disclosure of their health information? If so, in what circumstances?

(d) Should the nature of the health information affect the response to any of these issues?

Issue 9.3

(a) Where a young person cannot consent to disclosure of his or her health information, should the young person’s parents have the authority to do so?

(b) If so, should there be any limitations on the exercise of such authority?

Issue 9.4

(a) Should non-consensual disclosure of a young person’s health information be permitted in any circumstances other than those listed in the Health Records and Information Privacy Act 2002 (NSW)?

(b) Should the Health Records and Information Privacy Act 2002 (NSW) impose any additional limitations or controls on non-consensual disclosure of a young person’s health information?

Issue 9.5

Should the mandatory reporting requirement contained in s 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) apply also to 16 and 17 year olds?

Issue 9.6

Are there other situations that should be added to the list in s 23 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)?

Issue 9.7

(a) Should the Freedom of Information Act 1989 (NSW) contain additional limitations on access to medical records by a young person, such as those found in the NSW Premier’s Department’s Freedom of Information Procedure Manual?

(b) Is the “unreasonable” disclosure provision in the Freedom of Information Act 1989 (NSW) a sufficient control on parental access to medical records?

Issue 9.8

(a) Should the Private Hospitals Regulation 1996 (NSW) contain any additional limits on the right of young people to access their clinical records? For example, should the ability to request access be limited by a test of capacity?

(b) Should the Private Hospitals Regulation 1996 (NSW) contain additional grounds of refusal to grant access to a young person’s parent, in their capacity as a patient’s representative? For example, should access by a parent be dependent upon access being in the under-age patient’s best interests or some other test?

Issue 9.9

(a) Should the right of access to medical records, conferred by the Health Records and Information Privacy Act 2002 (NSW), be extended to all young people?

(b) If not, is the statutory test of capacity an appropriate limitation on access or would some other test be more appropriate?

(c) Should the Health Records and Information Privacy Act 2002 (NSW) contain any additional limitations on the exercise of the right of access by those young people who have that right?

(d) Should parents have an independent right of access to their children’s medical records in circumstances where the young person is capable of exercising his or her own right of access? If so, under what circumstances?

Issue 9.10

Is the law dealing with the retention of young people’s health information adequate?

Issue 10.1

(a) Is the law that governs the consent of young people to medical treatment obscure?

(b) Should the law that governs the consent of young people to medical treatment be codified?

(c) If not, should the law that governs the consent of young people to medical treatment be consolidated?