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Children and Young People » Limits of Parental Consent / Refusal

Legislation

Children and Young Persons (Care and Protection) Act 1998 s228 NSW
NSW Parliament
Children’s court has jurisidiction where there has been a failure to provide adequate and proper medical aid.

Family Law Act 1975 (Cth) s67ZC Cth
Commonwealth Govt
Outlines some of the limits to parental consent / refusal to treatment. The court to consent to certain treatment that parents cannot consent to, eg sterilisation procedures. In situations where the Family Law Act and the Guardianship Act are inconsistent, the Family Law Act prevails.

Toolkits and Protocols

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.

Parental Decision Making
Ethics in medicine – University of Washington School of Medicine.

Cases

Auckland District Health Board v W [2012] NZHC 1563 New Zealand
The New Zealand High Court ordered that a child be placed under guardianship for the purpose of consenting to a kidney and liver transplant. Child’s parents were Jehovah’s Witnesses and unable to consent to blood transfusions involved in the treatment.

Children, Youth and Women’s Health Services Inc v YJL, MHL AND TL [2010] SASC 175 South Australia
Blood products were ordered for a 10-year-old boy with osteosarcoma, whose parents were Jehovah’s Witnesses.

Department of Health and Community Services (NT) v JWB (Marion’s Case) (1992) 175 CLR 218 Cth
Parent’s authority is not absolute – they are required to act in the child’s best interests. Court held that parents cannot consent to a non-therapeutic procedure to sterilise their daughter who has an intellectual disability. Such a decision must be approved by the court.

K v Minister for Youth and Community Services [1982] 1 NSWLR 311 NSW
not freely available online
Guardian of a 15 year old girl refused consent for an abortion which she and her mother wanted. Girl was a ward of the court and so consent of the Minister for Youth and Community Services was necessary. Judge allowed the abortion due to the adverse affects on her health through being forced to bear the child.

L and GM v MM, Director General, Department of Family Services and Aboriginal and Islander Affairs (Sarah’s case) (1993) 17 Fam LR 357 Cth
Parents wished their child to be sterilised. Child had an intellectual disability and lived in a disabled persons’ ward. Court held it was not in the child’s best interests.

North Western Health Board v W(H) [2000] IEHC 197 (27 October 2000)
Parents refused to allow medical practitioners to administer the Guthrie test for PKU, spina bifida and other conditions to their child. Court found in favour of the parents.

Re A (1993) 16 FLC 94-402 Cth
Court held that parents could not consent to gender reassignment surgery for their 14 year old child as the treatment was invasive, irreversible and major.

Re Vaccination/MMR litigation: A v B, D v E [2003] EWCA Civ 1148
not freely available online
Court overrode mother’s refusal of the MMR vaccination for her child.

Re Baby D (No. 2) [2011] FamCA 176 (16 March 2011) Cth
The judge agreed that parents could authorise the removal of the tube and the sedation of Baby D on best interests grounds and that such a decision could be made by parents without judicial review.

Re Bernadette [2011] FamCAFC 50 Cth
Full Family Court dismissed the appeal as the child had since turned 18 and the courts found that it did not have jurisdiction.

Re Jamie [2012] FamCAFC 8 Cth
The court considered the application for the consent of special medical procedures for treatment of gender identity disorder and authorised the parents to consent to only the first stage of the treatment for their 10 year old child. The case is currently on appeal with an undisclosed public authority intervener now a party to the proceedings.

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.

Papers, Reports and Books

What limits, if any, should be placed on a parent’s right to consent and/or refuse to consent to medical treatment for their child?
Nursing Philosophy (2010), 11, pp. 280–285

When parents refuse
Medical Observer. 29th May 2009

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