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Children and Young People » Consent and Decision Making

Legislation

Children and Young Persons (Care and Protection) Act 1998 NSW
NSW Parliament
Requirements to notify the DG of children in need of protection. Consent to medical treatment by authorised personnel. In an emergency a medical practitioner may provide treatment to save the life of the child.

Family Law Act 1975 (Cth) ss61B, 61C(1) Cth
Appropriate person to give consent to or refuse treatment for infants and young children are the parents.

Guardianship Act 1987 (NSW) s37 NSW
In situations where no parent or guardian is there to consent, enables treatment to be given without consent to prevent the patient from suffering or continuing to suffer significant pain or distress as well as to save life or prevent a serious danger to health. (only applies where child is over 16).

Minors (Property and Contracts) Act 1970 NSW
NSW Parliament
Ability to consent to treatment for older children. Children in NSW can consent at age 14.

Toolkits and Protocols

An Overview of Minors’ Consent Law
Guttmacher Institute

Capacity Toolkit NSW
Attorney General
Provides an overview and checklist for assessing a person’s competence to make an advanced care directive or decisions about medical or dental treatment.

Children and young people toolkit
British Medical Association

Consent for Removal of Bone Marrow from a young child NSW
NSW Health
Consent requirements for bone marrow donation by a young child for a sick sibling. Includes limitations on who may receive the transplant and a consent form.

Consent to Medical Treatment – Patient Information NSW
NSW Health
Requirements for the provision of information to patients and obtaining consent to medical treatment.

Consent, Rights and Choices in health care for children and young people UK
British Medical Association
Offers comprehensive practical guidance on the ethical and legal issues which arise in the health care of patients under 18 years of age.

Guardianship Tribunal information: special medical treatment for people under 16 years NSW
NSW Guardianship Tribunal
The Tribunal’s consent is necessary for special medical treatment for a person under 16 years. This document outlines the process and requirements.

Human Tissue – Consent to Removal of Regenerative Tissue from Young Children and Consent Form
NSW Department of Health

Maternal Decision-Making – 2013
Australian Medical Association Position Statement

Parental responsibility
British Medical Association

Understanding consent in research involving children: The ethical issues
Ethics Unit / Centre for Children’s Bioethics
Murdoch Childrens Research Institute, Vic. Australia .

Cases

Department of Health and Community Services (NT) v JWB (Marion’s Case) (1992) 175 CLR 218 Cth
Case of a 14 year old girl with a severe intellectual disability. Her parents wished her to be sterilised. The court held that this was not a procedure that parents could consent to. Discusses the role of parents in consenting and refusing treatment and the assessment of competence in a minor.

Gillick v West Norfolk AHA
Question was whether a girl under age 16 could ask for and receive contraception without the consent of her parents. A child is considered capable of giving informed consent when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.

Papers, Reports and Books

Children, biobanks and the scope of parental consent
European Journal of Human Genetics (2011) 19, 735–739; published online 9 March 2011

Consent in paediatric research: an evaluation of the guidance provided in the 2007
The Medical Journal of Australia
NHMRC National statement on ethical conduct in human research.

Consent to treatment for transgender and intersex children
Deakin Law Review Volume 9 no 2

Ethical issues in bone marrow transplantation in children
Bendorf, A and IH Kerridge 47 (2011) J Paediatr Child Health 9, 614-19
This paper examines some of the ethical dilemmas that confront patients, families and medical practitioners when considering bone marrow transplantation in a child.

Informed Consent, Parental Permission, and Assent in Pediatric Practice
Pediatrics, Volume 95 Number 2, Pages 314-317, February 1995

The Decisional Capacity of the Adolescent: An Introduction to a Critical Reconsideration of the Doctrine of the Mature Minor
38 (2103) Journal of Medicine and Philosophy 3

Young People and Consent to Health Care
Report 19 (2008)
NSW Law Reform Commission
A review of the rules that regulate and impose restrictions on the decision-making process for young people’s health care in New South Wales.

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