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Updates to Children and Young People> Limits of Parental Consent

Re Jamie [2013] FamCAFC 110 Cth
Court considered whether the two phase treatment used in gender identity disorder was a special medical treatment for which consent was outside bounds of parental authority. Court found that the consent requirements were different for each stage and depended on whether the child was Gillick competent (capacity to consent to treatment) which was a matter to be determined by the court.

Re H [2011] QSC 427 Queensland
Court ordered vaccinations for hepatitis B when the mother (who had chronic Hepatitis B) refused to consent.

Re O (Special medical procedure) [2010] FamCA 1153 Cth
Court authorised parents of a 16 year old child to consent to special medical procedures.

Re Rosie (Special medical procedure) [2011] FamCA 63 Cth
Treatment for gender identity disorder was considered to be ‘special’ even though the children were over 16 years old and competent to consent.

TS & DS v Sydney Children’s Hospital Network (“Mohammed’s case”) [2012] NSWSC 1609 NSW
Garling J refused to force doctors to provide mechanical ventilation when parents sought an order requiring treatment for their child. Garling J was highly critical of quality of life assessments. His Honour found that the treatment would not cure Mohammed, not prevent his inevitable death but it would cause significant pain and discomfort.

Women’s and Children’s Health Network Inc v M, CN [2013] SASC 16 South Australia
Blood transfusions were ordered for a child with leukaemia. Parents objected on religious grounds as Jehovah’s witnesses. Court considered best interests of child and ordered treatment.

Updates to Consent>Requirement to Inform and Obtain Consent

Dean v Phung [2012] NSWCA 223 NSW
The treatment in question was unnecessary, was therefore a battery and the consent had been vitiated by misrepresentation.

Dewan v Medical Board of Australia (Occupational and Business Regulation) [2012] VCAT 1327 VIC
Failure to seek informed consent resulted in a surgeon being found guilty of unprofessional conduct for operating on a child and removing part of his bowel without making adequate investigations.

Medical Board of Australia v Steinberg (Occupational and Business Regulation) [2012] VCAT 218 VIC
A doctor was guilty of unprofessional conduct for not having informed his pregnant patient, before labour, of material risks, benefits and modes of delivery, especially in relation to instrument-assisted vaginal delivery and a caesarean section.

Reeves v R [2013] NSWCCA 34 NSW
All that was necessary for consent in criminal law was a basic understanding of the nature of the procedure. The jury had been misdirected by the trial judge on the nature of consent. Nevertheless, it was clear that the patient had not consented to the removal of her labia and clitoris. Bathurst CJ found that the doctor’s guilt was beyond a reasonable doubt.

Wallace v Kam [2013] HCA 19 (8 May 2013) Cth
The High Court found that the policy of informed consent is to protect a patient from injury, the risk of which is unacceptable to them. Where the injury actually sustained is not the result of such risk, there can be no liability. The patient’s claim was unable to satisfy the two limb causation test.

Updates to Negligence and Standards of Care > Duty and Standards of Care

Simon v Hunter and New England Area Health Service [2012] NSWDC 19 NSW
A mentally-ill patient was released to the custody of his friend who said he would drive him home. During the trip the patient killed the friend. Family members of the victim sued the health service for negligently releasing the patient. The judge found there was no duty of care to the family members as the risk of the patient killing the victim was not significant, probable or reasonable foreseeable, as required by the Civil Liability Act 2002 (NSW), s 5B.

Varipatis v Almario [2013] NSWCA 76 NSW
Case concerned a morbidly obese patient with terminal liver cancer who alleged that his GP had breached his duty of care by failing to refer him for bariatric surgery. The Court of Appeal found that a general practitioner’s duty of care does not require an exercise in ‘futility’ where the patient declines treatment or referral.

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