Parents or Guardians consenting to child’s medical treatment

The area of consent to medical treatment can be a complicated area. Generally, parents have the power and responsibility over their children in relation to healthcare. However, this power does not extend to consenting to any and every treatment, or refusing some types of treatment. Additionally, some types of treatments are simply not within the scope of parental power, and a court order must be sought. Another limiting factor is when the child becomes competent themselves to consent or refuse medical treatment.

In Western Australia the age at which a child becomes an adult (the age of majority) is 18 years old. The landmark court case of Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 determined that a child can be competent to make their own decisions about treatment even before the age of 18. This occurs when the child “achieves sufficient understanding and intelligence to understand fully what is proposed”. If a child is Gillick competent then the parents’ power terminates, and the child makes the decisions. Determining when a child is Gillick competent can be problematic, and always depends on the circumstances of each case. Although chronological age still plays a part in determining Gillick competence, it also includes other factors such as maturity and psychological assessments.

Most everyday medical decisions are within the power of parents to make. For example, immunisations and medication are within the power of parents to consent to or refuse on behalf of the child. However, there are certain procedures which are considered ‘special cases’ that parents are not at liberty to consent to. This includes procedures such as non-therapeutic sterilisation and termination of a pregnancy. In these cases parents must apply to court for authorisation.

Another important limitation on the parent’s right to consent on behalf of the child and make medical decisions, as well as the competent child making their own decisions, is the power of the court to overrule these decisions. The court will do this sparingly, and will exercise caution in doing so. However, the court will make such orders when it deems it in the best interests of the child and for the child’s welfare. This can occur, for example, where the parents are refusing life-saving treatment and the court considers that it is in the best interest of the child to receive the treatment.

Therefore, there are many limits to a parent’s general power to consent or refuse medical treatment. For example, where the child is determined competent the parent can no longer make decisions on their behalf. A family lawyer can provide advice as to what the court will consider in determining the question over competency as well as any necessary court applications. This area can become complex in certain cases and it is reassuring to have a supportive family lawyer assist you in these difficult matters.

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