Today’s questions are:
- Can a minor consent to treatment, when a parent is not available to give consent on the minor’s behalf?; and
- Can a minor consent to treatment, when a parent declines treatment on his/her behalf?
I think I have answered those in earlier posts – see
- Paramedics treating children (May 5, 2016);
- The need for parental consent in Emergency situations (NT) (July 16, 2016); and
- Consent, first aid and minors in Queensland (October 13, 2016).
The details are in those posts. The short answers are:
- Yes, a minor can consent if he or she is ‘Gillick competent’ that is the has ‘a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’ (Gillick v West Norfolk & Wisbeck Area Health Authority  AC 112). The critical question is not his or her age, but her understanding which will be different for different children but also different depending on the complexity of the issues at stake. A child may be able to consent to the application of a band-aid, but not to the administration of sutures etc. Where a child does not have the capacity to consent, and there is no one ‘in loco parentis’ to consent for him or her, then the doctrine of necessity applies and justifies whatever treatment that ‘a reasonable person would in all the circumstance [give], acting in the best interests of the assisted person’ (see The doctrine of necessity – Explained (January 31, 2017)).
- Yes, that was the issue in Gillick’s case where the court said that once the child met the standard of competency, he or she could give consent and that was sufficient. In New South Wales the Minors Property and Contracts Act 1970 (NSW) s 49 provides that a child over 14 (provided they are competent) can give consent, and the parents of a child under the age of 16 can give consent. Where a child is between those ages then the consent of either is sufficient. So a 15 year old can consent to treatment which can then be given (assuming the child is Gillick competent) even if the parents object. Equally the treatment that the parent’s consent to can be given even if the child objects. (It would not be an assault to touch the child in those circumstance but I don’t address the question of whether treatment that the child doesn’t want is therapeutic and putting aside ethical question of whether such treatment is appropriate or in the best interests of the child).