custom term papers
Home > Samples > Consent to medical procedures and best interests of the child in Australia.(This essay won a University Prize)

Consent to medical procedures and best interests of the child in Australia.(This essay won a University Prize)

April 30th, 2010 Leave a comment Go to comments

This statement by Lord Fraser has been incorporated into Australian law since Marion’s case was decided in 1992 and rest on the presumption that parents will always act in the child’s ‘best interests’ when making decisions for the child. However, is this the case in all situations? In critical matters, are parents granted the right to make decisions for their children? What are a child’s ‘best interests’? What degree of autonomy do children have in the context of health care choices? What considerations are deemed to be relevant in a contest between the parties? This discussion paper explores these issues as well as examining what is likely to happen if a dispute comes before the Family Court under the current law in South Australia.

Who is a child?
The stipulation of what age separates childhood from adult hood is purely arbitrary. In both domestic and international law , children are those persons who have not yet achieved the age of 18 years. The Family Law Act 1975 declares that a child is a person under the age of 18 years. All other persons are deemed to be adults.

In South Australia, in the medico-legal context, a person of 16 years of age may exercise the ‘adult’ right of granting their consent to medical treatment by virtue of s 6 of the Consent to Treatment and Palliative Care Act 1995.

Why are parents responsible for children’s welfare?
Children live under the aegis of their adult guardians who derive their parental powers to make decisions on behalf of the child from both the common law and legislation. The explanation for the old common law powers of parental control is the oft-quoted statement by Blackstone that “…the power of parents is derived from their duty…”. However, any absolute right of control or right arising from a duty has been rejected as part of the Australian common law. Instead, the contemporary view is that the “… common law gives this power to parents simply because it perceives them to be the most appropriate repository of such a power.”

Parental responsibility is defined in s 61B of the Family Law Act 1975 as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. This definition does not explain what these duties, et cetera are; therefore, it must be presumed that the reference is to common law and legislative rights and responsibilities.

Why do courts have a responsibility for children’s welfare?
Courts are charged with responsibility for children under the doctrine of parens patriae, literally “parent of the nation”. The role of the courts is to act as an objective parent. The objective test is set in the context of the ordinary mother and father [more passengers bound for Clapham!] and applied subjectively to the particular child. Indeed, the Family Court has greater powers than parents do in deciding matters relating to a child’s best interests with respect to a child of a marriage. It can also override any decision by the State courts vis à vis the welfare of a child who is not a ward of the state.

What are the ‘best interests’ of the child and how are they defined?
Although much talked about, a child’s ‘best interests’ are in reality an abstract concept. They are not defined in any statute or case law, yet they are the presumptive standard used by parents and judicial officers when making decisions regarding children. The Family Law Act 1975 states that a child’s best interests are paramount when making decisions with respect to the child’s ‘care, welfare and development’. The Family Court’s powers over parents in this area will be discussed later.

The sanctity of life is a presumption that appears throughout judgements concerning children particularly when parents have decided to withhold their consent for medical treatment in circumstances that might lead to the death of the child. Another presumption is framed in the context of what quality of life outcomes are associated with a particular medical treatment and whether it would have a detrimental effect on the child’s development into adulthood.

In deciding what constitutes best interests however, it seems that the emotional trauma associated with some procedures is not taken into account. Treatments that produce emotional trauma will be justified because the trauma will be outweighed by the anticipated benefits of the procedure. In fact, the predicted physical outcome of a particular course of treatment seems to be the main determinant factor in judicial decisions. This leads us to another apparent presumption made by the courts; that is, the supremacy of medical opinion over all other considerations.

The rule of law v the rule of medicine.
Medical opinion has a considerable impact on the courts’ determination of what constitutes acting in the child’s best interests. Without exception this will be the most decisive factor where the sanctity of life is in issue, even in cases where a ‘Gillick competent’ child has unequivocally refused consent to the procedure . In every reported case the medical profession was granted consent by the court to proceed with treatment they deemed most appropriate, despite the refusal by the child and, in some instances, contrary to the wishes of the parents. The courts have even acquiesced to medical opinion in cases where the religious or cultural wishes of the child or the parents have been contrary to medical opinion. In the case of Re Hofbauer the New York Court of Appeal allowed parents to adopt an ‘alternative’ form of treatment for their child.

Although it is thought unlikely that such a course would be taken by English or Australian courts, it would appear that they have ceded significant discretionary powers to the medical profession in a manner that is inconsistent with the Australian common law principle developed in Rogers v Whitaker . The recourse by the court to the Bolam principle, of allowing medical opinion to be the paramount consideration, is inconsistent with the High Court decision, which reposes all discretionary power in the court. In turn, his rise in the status of medical opinions to the level of matters of judicial notice overwhelms the role of the parent. The advisory role of the medical profession should not be allowed to become one of absolute authority.

Do children in South Australia attain medico-legal adult rights at 16 years?
As noted above, persons in South Australia who have attained the age of 16 years are granted the power to consent to medical treatment by virtue of s 6 of the Consent to Medical Treatment and Palliative Care Act 1995. However, this grant does not create an unfettered right to make decisions with respect to all medical treatment. Although children may be able to consent to medical procedures, they do not apparently possess the corollary right of refusal.

Furthermore, the Family Court could hold the right granted to the child under the State Act as invalid. In a contested situation where the child was maintaining this right to consent to medical treatment the Family Court could overrule the child’s ability, and indeed the parents ability, to exercise any power of consent because of its supreme jurisdiction over matters concerning the welfare of children in Australia. This is a point to which I shall return.
When can children have the unequivocal right to consent or refuse?
Quite obviously, in the case of infants and ‘young’ children, it is neither logical nor practicable to allow them to make decisions on a matter that may have profound and irreversible ramifications on their future. However, there could come a time, before attaining majority, when a person is capable of not only consenting to medical treatment but also refusing to be subjected to it. Currently this is does not seem to be the case in England or in Australia.

“Every human being of adult years and of sound mind has the right to determine what shall be done to [their] own body…” even if death is the consequence of that decision. The underlying principle, the ‘presumptive standard’, is that all adults are presumed to be competent to make decisions of that magnitude. However, children are presumed to be incompetent unless they can demonstrate that they have achieved “… a sufficient understanding and intelligence to enable [them] to understand fully what is proposed.”. This level of understanding, known as ‘Gillick competence’, must be demonstrated to the satisfaction of the court, and has become known as the ‘evidential standard’ of competence as opposed to the presumptive standard outlined above.

Clearly the evidential standard is harder to achieve than the presumptive standard. The presumptive standard always exists until rebutted, usually by expert opinion evidence. The evidential standard however must be proven to exist to the degree required by civil law; that is, on the balance of probabilities. One of the problems that has been encountered by children with respect to establishing this standard has been that if their preference does not accord with the prevailing medical opinion, then their decision will be seen as irrational and therefore falling short of the evidential standard.

Therefore, the unequivocal autonomous right of a child to determine appropriate medical treatment can only be achieved by compliance with the prevailing medical and legal opinions. Compliance is inconsistent with the notion of autonomy.

Autonomy for children
Autonomy is recognised as a ‘general moral notion’ that empowers individuals to make their own decisions based on “… their own values and beliefs without the interference of another individuals values.”. It has been suggested that it is in the best interests of both the individual and society that autonomous decisions be respected, provided that significant harm to others does not result from that course of action.

The preamble to the Convention on the Rights of the Child, ratified by Australia in 1991, recognises that children have a right of autonomy that develops in accordance with their capacity. Article 12 of the Convention states that: “State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” This article also implicitly confers on the child the right to be heard in judicial proceedings. However, in matters before the Family Court, where most decisions affecting a child’s welfare with respect to medico-legal issues will be made, children are represented by court appointed ‘separate representatives’

The findings of the Australian Law Reform Commission were that in most cases the representatives “… discount, editorialise or reject …” the child’s expressed wishes and “… argue the case in accordance with [the separate representatives] own views of the child’s best interests.” This practice, in the case of a ‘Gillick competent’ child, does not accord with either the notion of autonomy or the obligation that Australia has by virtue of its ratification of the treaty emanating from the Convention. Moreover, the actions of the separate representatives could be the subject of a challenge under the external affairs powers of the Constitution.

The ratification of a treaty does not introduce its terms into the law of Australia. However, it may have an impact on the interpretation of legislation and the development of the common law. Furthermore, in the case of Teoh v Minister for Immigration and Ethnic Affairs it was held by the Full Bench of the Federal Court that an obligation under a treaty would be a relevant consideration for a public officer who is entrusted with a discretion, or it may form the foundation for a legitimate expectation that the officer will exercise a discretion in a particular way.

It is arguable that the separate representative, as an appointed officer of the court, is a public officer within the meaning of Teoh’s case and therefore bound by that decision to conform with the provisions of Article 12 of the Convention, particularly if the separate representatives are employees of the Legal Services Commission.

In South Australia, can a 16 year old person exercise an unfettered right to consent to medical treatment?
Under South Australian legislation, a person of 16 years can give consent to medical treatment in the same way as an adult. However, this grant of right to the person is probably invalid under the provisions of s 109 of the Constitution because of an inconsistency with Part VII of the Family Law Act 1975. A Commonwealth law may exclude the operation of a State law, or render the law inoperative, where there is an inconsistency between them.

An indirect inconsistency between State and Commonwealth law can arise in circumstances where it can be inferred that the intention of the Commonwealth law was to ‘cover the field’. There are three questions to consider when determining whether there is an indirect inconsistency between two laws. The questions to be answered are; what field or subject does the Commonwealth law seek to regulate; is the Commonwealth law intended to be the law; does the State law encroach upon that area of Commonwealth responsibility?

In the case of P v P a majority of the High Court held that PartVII of the Act was intended to confer on the Family Court, jurisdiction – unimpeded by State laws – to authorise the sterilisation of a child. It was determined that the jurisdiction of the Family Court was directly concerned with child welfare issues and therefore supported by s 51 (xxi) and s 51 (xxii) of the Constitution. Welfare rights were deemed to be an aspect of the jurisdiction of the Family Court, which could be frustrated if State laws were allowed to circumscribe the Courts’ powers in determining the circumstances in which a child could be subjected to medical treatment.

From the decision in P v P it is arguable that the High Court decided that the subject matter which Part VII of the Family Law 1975 was intended to regulate ‘covers’ all welfare matters affecting children with respect to medical treatment. As any person who has not attained the age of 18 is a child under Family Law, this would also include children in South Australia who are purported to have been enfranchised with the right to consent to medical treatment.

Another way to determine whether the Commonwealth intended the Family Law Act 1975 to be the law on this subject matter is to demonstrate that there is a manifest intention of exclusivity on the part of the Commonwealth. In O’Sullivan v Noarlunga Meat Ltd it was decided that if the Commonwealth legislation could be described as an “… extremely elaborate and detailed…” piece of legislation then this characteristic decisively demonstrated the intention on the part of the Commonwealth to ‘cover the field’. It could be contended that the extensive and elaborate details of Part VII of the Family Law Act 1975 dealing with child welfare evinces an intention by the Commonwealth to exhaustively cover this field of subject matter.

An attempt by the State to make a law regulating some aspect of child welfare would be inconsistent with the Family Law Act 1975 and would arguably render it invalid under the provisions of s 109 of the Constitution. Therefore, the grant of right under Section 6 of the Consent to Medical Treatment and Palliative Care Act 1995 is probably invalid. It could also be invalid because it purports to create a legal right that the Commonwealth law effectively prohibits.

How true is the statement of Lord Fraser?
In the overwhelming majority of case where there is no matter in dispute, parents are probably deemed to be the best judges of a child’s welfare. However, in matters critical to the health of a child where the parents consider issues other than bald medical outcomes to be important, the opinion of the medical profession rather than the judgement of the parents will rule supreme in a manner that is arguably inconsistent with Australian law. Therefore parental autonomy is conditional to medical opinion.

In the area of autonomy children fare no better than their parents do. In South Australia, a person of 16 years or a ‘Gillick’ competent child can allegedly consent to medical treatment. However, any right to consent they may have is circumscribed by the provisions of Part VII of the Family Law Act and the fact that s 6 of the Consent to Medical Treatment and Palliative Care Act is probably invalid under s 109 of the Constitution.

  1. No comments yet.
  1. No trackbacks yet.