Today’s correspondent is a

… paramedic in WA.

I was just reading about some cases from overseas where parents were treating children with prayer or homeopathic regimes, and how parents would try and refuse medical treatment.

Assuming I was called to such a patient, where do I stand legally on treating the child? Let’s assume the child is grossly unwell and needs urgent medical care, care which I am trained to provide and have appropriate equipment to deliver. Am I able to start treatment? Do I have to wait for police intervention? Does the parents’ rights overrule the needs of the sick child?

I think the best answer I can give is to quote from my own book – Emergency Law (4th ed, 2013, The Federation Press) pp. 58-59 where I said:

As a general rule parents have the right to give consent to the treatment of their children. With the right to give consent comes the right to withhold or refuse consent (Re Baby D (No 2) [2011] FamCA 176).  Where a parent consents to the treatment of their child there is no problem. Where a parent refuses to let a rescuer, particularly a trained rescuer, treat their child then the situation is more complex. If the child has suffered a minor injury it would be reasonable to respect the parent’s wishes. The volunteer first aid officer should not put a band-aid on the child’s cut hand if the child’s parent does not want them to.

The legal and moral difficulty will arise when the child requires treatment in order to save their life or prevent long-term harm and the parents object. Although parents may give consent for medical treatment to be administered to their children, they may only give consent if that consent is in the best interests of the child (Marion’s case (1992) 175 CLR 218).  It would follow that if a parent is to refuse consent for treatment that refusal must also be motivated by the best interests of the child (Re Baby D (No 2) [2011] FamCA 176).  A refusal that was not “in the best interests of the child” is unlikely to be binding.

The need for an understanding of the consequences before a refusal of consent can be considered binding is also relevant. In most cases it will be likely that when a parent says they do not want their child treated by, for example, a volunteer rescuer, they do not understand the nature of the child’s condition. If the child will die without the treatment, for example, if he or she is unconscious and needs to be turned onto their side for airway management, then the statement by the parent “don’t touch my child” will not be binding if the parent is not in a position to understand that the option is not between the first aid by the rescuer on scene and waiting for an ambulance; rather the choice that they are making is between life and death. In these circumstances, and given the urgency of the situation, the apparent refusal would not be “valid” and treating the patient would not be an assault (Re T [1992] 4 All ER 649).  (Even if the parent did understand the consequences, it is likely that the treatment is permissible on the basis that the parent can only refuse consent if that is in the best interests of the child, and that is unlikely in this scenario.)

Ultimately, for rescuers other than medical practitioners and perhaps members of professional ambulance services, the question of what to do in the face of a sick or injured child and a refusal by the child’s parents will be legally (and actually) very difficult. The law would appear to say that if the parents are not acting in the best interests of the child then their apparent objections may be ignored. This may, of course, come to a conflict between the parents’ honest belief as to what is in the child’s best interests and the rescuers’ equally honest, but conflicting belief. In these cases, the severity of the injuries will help determine the matter. A decision by a parent that they do not want the rescuer to bandage their child’s sprained ankle can probably be honoured. A decision by a parent that they do not want their child to be resuscitated after being struck by a car can probably be ignored. Between these two extremes lie a number of possibilities that will require the rescuer to consider how strongly they believe that some treatment should be given and what the consequences to the child will be if that treatment is not given.

There will, in these cases, also be extra legal considerations, in particular whether it is in fact possible to administer treatment in the face of parental objections. It will not be possible to treat a child whose parent has physically picked it up and carried it away. On the other hand, it may be possible to treat a child at a car accident where bystanders or police may be able to assist in restraining the distraught parent from intervening. In these cases, it is not the law, but tact, professionalism and a reassuring manner that will allow treatment to proceed.

If the matter were to come to court it is probable that the courts would find that, provided the treatment was necessary to save the child’s life or prevent serious long-term harm, then it may be legally given even though the child’s parents objected.

In context of this question my correspondent is a paramedic but there is no ambulance legislation in WA so there is no specific power or authority vested in a practitioner because he or she is a paramedic.  Should time permit the best approach would be to refer the case to child welfare authorities and/or police, but the scenario posited by my correspondent is that the child is ‘grossly unwell and needs urgent medical care’ so time does not permit.  My view would be that on the basis of the arguments above, ie that the decision by the parent’s is not being made in the child’s best interests, no-one would challenge the paramedic’s decision to save the child’s life.