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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. 

Family Law Act 1975 (Cth) ss61B, 61C(1) Cth
Commonwealth Govt
Defines Parental Responsibility : includes all duties, powers, responsibilities and authority which, by the law, aprents have in relation to children. This presumably includes consent to medical treatment. Also allows the court to consent to certain treatment that parents cannot consent to, eg sterilisation procedures (s67ZC). 

Guardianship Act 1987 (NSW) NSW
Guardianship laws apply to people over the age of 16. 

Minors (Property and Contracts) Act 1970 NSW
NSW Parliament
Ability to consent to treatment for older children.   

Public Health Act 1991 (NSW) s22 NSW
Director General can make an order for a child to be examined without parental consent if it is believed the child has a category 4 or 5 medical condition.
  

Toolkits and Protocols

 

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.  

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.  

Guardianship Tribunal information: special medical treatment for people under 16 years [PDF]   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.  

   

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. Also adopts the test for Gillick competence, the idea of the ‘mature minor’.   

Docs v Y [1999] NSWSC 644 NSW
Doctors applied for a young anorexic girl to be returned to hospital for treatment despite the wishes of both the young girl and the parents. Court exercising parens patriae jurisdiction and declaring the patient a ward of the state.   

Gillick v West Norfolk AHA UK
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.  

Re W (a minor) (Consent to medical treatment) [1993] 1 Family Law Reports 1 UK
Treatment of a 16 year old girl with anorexia nervosa against her will. Patient was not considered competent, due to the influence of anorexia nervosa on her state of mind, to refuse the treatment.

Royal Alexandra Hospital of Children v J and Ors [2005] NSWSC 465
NSW
A 16 year old patient refused a blood transfusion on religious grounds. While at the age of 16 the patient can refuse treatment, the court, in its parens patriae jurisidiction, can consent to the treatment if it is in the patient’s best interest. 

 

Papers, Reports and Books

    

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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