I’m asked this question by a first aid instructor from Queensland.
As part of first aid training we talk about consent and the need for patients to provide consent (where possible) before first aid is delivered. I understand that consent in not required when the patient is unable to provide this, such as unconsciousness.
My question is regarding consent for ‘minors’. I have recently had some debate in class as to whether the term minor relates to someone under the age of 18 or 16.
So is parental/guardian consent required before first aid is rendered to a minor (where possible), and if so, what is the age where parental/guardian consent is required.
I have addressed this earlier with respect to Northern Territory law (see The Need for Parental Consent in Emergency Situations (NT) (July 16, 2016)). In that post I discussed the decision in Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112. I also discussed the Minors (Property and Contracts) Act 1970 (NSW) s 49. I concluded that ‘There does not appear to be any equivalent legislation in the Northern Territory so the common law of Gillick will apply’. It is also the case that there is no specific legislation in Queensland so in that state too, the relevant test is that of competence. A child can give effective consent to medical treatment if they are sufficiently mature to understand the information that they are being given and to act on that information.
Legal Aid Queensland says “A child or young person under 18 may make decisions about their own medical treatment if they’re capable of understanding its significance” (see Legal Aid Queensland Medical Consent (2015)).
Queensland Health (Queensland Health, Guide to Informed Decision-making in Healthcare (2011)) says, at [3.1.1]:
In Queensland there is no fixed lower limit below 18 years of age at which children or young persons are deemed to be able to consent to healthcare, and so, as they mature, the child’s capacity to consent generally increases. On the other hand, the authority of parents to consent on behalf of a child or young person is not absolute. Their parental responsibility decreases as the young person matures until it ceases to exist when the child reaches 18 years of age. As a result of this there may be times when both someone with parental responsibility and the child or young person simultaneously have the ability to provide consent to healthcare.
(see also Health Law Central Consent – Minors (Children and Young People) – Decision Making by ‘Mature Minors’ (Older children) ‘Gillick Competence’ (Undated) and Sara Bird Consent to medical treatment: the mature minor (RACGP, 2011)).
Discussion
A minor is a person under the age of 18, but just because a person is a minor it does not mean that they cannot given an effective consent. Parental consent is not required where a child’s life is in danger because even though a child may be ‘gillick competent’ and able to give consent, they may not be able to refuse consent and even if they can, in a life threatening emergency there would be serious doubts about their capacity to take on the information that is being given and the consequences.
For other treatment such as assisting with a wound or illness a mature minor could give consent. If they cannot give consent and there is no parent present, the doctrine of necessity would justify treatment that is reasonably necessary and in the child’s best interests. If they cannot give consent and there is someone present who has parental authority then there consent should be obtained and my be implied by their cooperation with the first aid team.
Australian Emergency Law 
Although this post is ostensibly about capacity to provide consent when a person is under 18 years of age, it raises an allied issue of confidentiality. Neither Gillick nor Re Marion cover what should be done when a child or young person is assessed as not having capacity to consent to medical treatment, but asks that his or her health information not be disclosed to a parent. A bit of a conundrum for a first responder, paramedic or medico.
Moreover, the Australian Medical Association (AMA) has stated that, if a young person is able to make autonomous decisions regarding medical treatment and wishes the treatment to remain confidential, his or her doctor must respect and maintain that confidentiality. There will, of course, be situations in which the doctor is required to disclose information. Even for adults, there are ethical, statutory and common law exceptions to the duty of confidentiality that require disclosure of information in certain circumstances.
The Privacy Act and other Australian health information laws reflect the approach taken by medical practitioners and do not prescribe an age at which a young person is assumed to have the capacity to make decisions on his or her own behalf regarding their personal information.
The following questions ensue;
1. For a person under 18 years of age, having Gillick assessed capacity, would the treating first responder, paramedic or medico be in breach of his/her duty of confidentiality to patient in advising parents/guardian of patients health information without obtaining express consent from patient?
2. For a person under 18 years of age, assessed not to have Gillick capacity, would the treating first responder, paramedic or medico be in breach of his/her duty of confidentiality to patient in advising parents/guardian of patients health information?
Where a patient, regardless of age, is competent to make a decision on medical care I would infer that they are also entitled to have their confidentiality respected. In fact that was a key issue in Gillick where the health authority was willing to give sexual health and contraception advice to young girls without their parent’s consent. The finding that a child was ‘Gillick competent’ meant that the child could give consent without reference to her parents. With the capacity to consent comes the capacity to insist on confidentiality.
For a child who is not ‘Gillick competent’ I actually have trouble imagining how the situation will arise for first responders or paramedics; but let me try to imagine a scenario. Imagine a call to a playground for a young child who has been assaulted. The child is, say 10 years old and not sufficiently mature to give consent. Let us also assume the child is in the company of an older family member, perhaps a cousin. For whatever reason the decision is made to transport the child but the cousin does not travel in the ambulance so the paramedics are alone with the child. At that time the child says that it was in fact the cousin that was the assailant but asks the paramedics not to tell anyone because the child fears the repercussions.
Would it be a breach to reveal that information? The answer to that question depends on who you reveal it to. If you give the information at hand over to the medical/nursing staff it’s not going to be a breach as it’s relevant history and is going to affect how they treat the child in the child’s best interest. Further, confidential information is given to health professionals for the purpose of providing health care so the information is being used for the purpose for which it was obtained. It would also not be a breach to report the information to police, hospital social workers and/or the relevant child protection authority. Having said that however I don’t see that paramedics need to do all of that; if they pass the information to the ‘hospital’ they might reasonably assume that the ‘hospital’ that is providing ongoing care, will meet those obligations, but circumstances can vary. For example, a police officer may ask the paramedic what they saw and observed because they have been told they are investigating a random bashing, so telling the investigating police what the child told the paramedic would be both relevant and not a breach of confidentiality (see Paramedics And Patient Confidentiality (March 26, 2015) and the cases discussed there; see also the Privacy Principles set out in the various Privacy Acts including the Privacy Act 1988 (Cth) which says, at s 16A, confidential information can be released if it is ‘necessary to lessen or prevent a serious threat to the life, health or safety of any individual…’).
What would not be justified is simply telling the child’s parent’s that it was the cousin who was the assailant. Putting aside any breach of confidentiality, one has to look at the issues from the point of view of the best interests of the child. The paramedics aren’t going to be in a position to deliver that news with care or to follow up on the care of the child. If the child fears repercussions they know their family better and you may well expose them to risk. We hope (in what I agree may be a utopian view) that the hospital (with doctors, nurses, social workers and other relevant staff), police and child welfare agencies will work together the support the family and the child. If it were a US television show the child would end up hanging around the fire station with the EMS and fire fighting crews who would eventually confront the parents and show how horrible they are, which they would break down in tears, it would have a happy ending after an hour and the paramedics would be tough, rough diamonds who saved the day; but we don’t live in US television dramas. Confronting the parents against the child’s wishes is, in reality, likely to be unhelpful.
To put the child who may be ‘Gillick competent’ into context, I offer the following situation (which is becoming increasingly common). A 16 YO attending a music rave party presents to onsite first responders appearing intoxicated and is likely suffering from affects of recreational party drugs. She is treated, but insists parents and police are not contacted, even though you form the view that parental involvement may be beneficial to patient – eg. to transport patient home.
Of course assessing capacity or ‘Gillick competency’ is such a situation would be somewhat challenging?
In that example I think you would have to honour the patient’s wishes. If you don’t and people think that the first aiders can’t be trusted people may be unwilling to seek assistance. The more complex issue is if you need to ring the parents to come and get the child but the patient doesn’t want you to say why they are ‘unwell’. Mind you, I’m sure the parents would work it out!