Consent for minors

In general, a minor (less than 18 years) requires consent from a parent or guardian before treatment can commence, with the exception of an emergency or if they are considered a ‘mature minor’ who have capacity to make decisions about the treatment in question.   
Whether a minor is a mature minor will depend on their age, understanding and treatment in question.  In some circumstances, children aged 14 or younger may have the capacity to consent to treatment.
If a child is a mature minor, generally their consent for treatment is sufficient, can withstand parental or guardian objections and gives them the same right to confidentiality as an adult patient. 
There are also certain treatments, i.e. those with irreversible effects which normally require Court approval for a person under age 18.   If so, neither parental nor mature minor consent is enough. 
The law nationally
Generally, a parent can consent to their child’s treatment, both under the common law and the Commonwealth Family Law Act 1975.  
A child may be able to consent to treatment if they “achieve a sufficient understanding and intelligence to enable [them] to understand fully what is proposed” (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112).  This is commonly referred to as the Mature minor or Gillick competent child. 
If a child is a mature minor, generally they will be able to consent to treatment without the need for consent from a parent or guardian. 
Assessing whether a child is a mature minor is a matter for professional judgment, involving consideration of:
  • Their age
  • Circumstances of presentation
  • Medical and social history
  • Their ability to understand the issues and circumstances
  • Their maturity and degree of independence
  • Family or other social dynamics
  • The type and sensitivity of the information to be disclosed, and
  • The complexity and nature of the treatment (e.g. elective, therapeutic or emergency, minor or major).
There are limits on whether a parent, guardian or mature minor can consent to ‘special medical procedures’ on a child.  This involves situations where there is a significant risk of a wrong decision being made, the treatment involves grave consequences, it is irreversible and invasive, and there may be conflicting interests amongst a child, their parent and treating practitioners.  In many cases involving these treatments, Court approval will be required. 
There are also additional laws relating to treatment of minors in South Australia and New South Wales.  In essence, these clarify when and how the mature minor test operates.  If you are working in a public hospital, there may also be policies and protocols in place around when treatment can be given to minors without parental or guardian consent. 
South Australia
The Consent to Medical Treatment and Palliative Care Act 1995  prescribes that: 
  • An individual of 16 years of age or over can make decisions about their  medical treatment 'as validly and effectively as an adult'
  • A child under 16 can be provided treatment if:
    • the child consents
    • the treating medical practitioner believes the treatment is in the best interests of the child and the child is 'capable of understanding the nature, consequences and risks' involved, and
    • the practitioner’s view is supported in writing by at least one other medical practitioner who examines the child prior to treatment. 
New South Wales
According to the Minors (Property and Contracts) Act 1970:
  • a consent by a child aged 14 years or over, or
  • a consent by a parent or guardian to treatment on a child less than 16 years old 
is a defence to a claim for assault or battery relating to the treatment.
If a child is a mature minor they are entitled to the same confidentiality about their health information as an adult patient.  This means a parent or guardian does not have a right to know this information. 
There may be circumstances where a medical practitioner is justified in breaching confidentiality and informing a parent or guardian directly where first obtaining the child’s consent is not be feasible. For example, where there is an urgent need to treat a previously undiagnosed serious illness.
An unforeseen need to later contact a mature minor directly about a sensitive issue may arise.  We suggest confidential contact details are sought from the minor at the beginning of a consultation which could lead to such a need, so as to avoid inadvertent breach of confidentiality.
Mature minors’ refusal of treatment
In many situations, a mature minor’s refusal of treatment, even against medical advice, may still be valid, even if it is against what their parent or guardian want. 
There can be situations where a Court would overrule a mature minor’s refusal if it is not in their best interests.  These situations may include decisions which would lead to a child’s death, or have other very serious consequences.   
Disputes between parents and children about treatment
If a mature minor consents to treatment, but their parent or guardian refuses consent, the child’s consent will generally be sufficient authority to provide treatment.
In certain circumstances, particularly if the treatment involved is serious with long-lasting consequences, involves significant risks or there could be some question around the mature minor’s capacity, it may be appropriate to seek a Court determination of whether treatment should proceed, based on a determination of the child’s “best interests’.

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Information on this site does not constitute legal or professional advice. If you have questions, or need advice please contact us for assistance.