Today’s correspondent, a paramedic from Queensland, has:

… a question regarding the treatment of a minor against a parent’s wishes.

Example: You have a child who is not competent to make their own decision, who is critical and could die or sustain life long injuries if they are not treated with “x” medication or “x” procedure.

The parents state they do not want either completed even after explaining the situation and consequences.

Do you have a legal right to treat the patient against their wishes?

Fundamentally the answer is ‘no’. 

Legislation in all jurisdictions allows some treatment to be given to children in the face of parental objection. In some states that is limited to blood transfusions, in others it extends to all medical treatment.   The Transplantation and Anatomy Act 1979 (Qld) s 20 allows medical practitioners to provide blood transfusions to children even if the parents have refused that procedure. One can see that is a very limited exception to the otherwise general rule that parents are the ones best positioned to consent to, or refuse consent to medical care.  

In Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15 the Hight Court had to consider the limits on a parent’s capacity to give consent to medical care.  Although that case about consent it must follow that the principles also apply to a refusal of consent. The significant limit on a parent’s capacity was the child’s ‘best interests’.   At [26]-[27] Mason CJ, Dawson, Toohey and Gaudron JJ said (emphasis added):

… the overriding criterion to be applied in the exercise of parental authority on behalf of a child is the welfare of the child objectively assessed. That these two principles become, for all practical purposes, one is a recognition that ordinarily a parent of a child who is not capable of giving informed consent is in the best position to act in the best interests of the child. Implicit in parental consent is understood to be the determination of what is best for the welfare of the child.

In arguing that there are kinds of intervention which are excluded from the scope of parental power, the Commonwealth submitted that the power does not extend to, for example, the right to have a child’s foot cut off so that he or she could earn money begging, and it is clear that a parent has no right to take the life of a child. But these examples may be met with the proposition that such things are forbidden because it is inconceivable that they are in the best interests of the child. Even if, theoretically, begging could constitute a financially rewarding occupation, there is a presumption that other interests of the child must prevail. Thus, the overriding criterion of the child’s best interests is itself a limit on parental power.

That case was about whether the parents of Marion could authorise her sterilisation.  Because of the important and permanent nature of the surgery, the court determined that it was beyond the powers of the parents to give that consent, rather the Family Court had to be approached for an independent assessment of the child’s best interests.  Without going into the details, I believe that it is no longer the case that the Family Court must be approached, but the principle remains: the parent’s decision must be motivated by the child’s best interests. It can also be seen that where there is a dispute it is not for the medical, or in our case paramedical practitioners, to impose their view of the child’s best interests. Where there is a genuine dispute it is a court that can determine what treatment is warranted in the child’s best interests.

A ‘child in need of protection’ is a child who (Child Protection Act 1990 (Qld ) s 10):

(a) has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and

(b) does not have a parent able and willing to protect the child from the harm.

Where a child is in need of harm there are provisions to allow the state to intervene and if necessary, take the child into custody and authorise their medical care (ss 18(7) and 97). The fact that these provisions exist imply that the Parliament has thought about the issue, decided on a response and that response does not include allowing paramedics to impose their idea of the child’s best interests on the parents.

Next is the question of whether the parents are competent to make the decision?  If the child has a diagnosed illness and the parents have made an informed decision, even if it is a decision that others disagree with, that should be honoured. If the matter is a sudden emergency there has to be consideration of whether in the circumstances the parents are able to hear and take on board the information they are being given and weigh that in their decision making process (see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)).  If they are then they can refuse consent but if they are not able to do that, if they are not competent, then their decision is not binding.

The Ambulance Service Act 1991 (Qld) s 38 says

An authorised officer, in providing ambulance services, may take any reasonable measures—

(a) to protect persons from any danger or potential danger associated with an emergency situation…

There are then a list of powers that may be exercised but none of them would allow a paramedic to override a patient’s choice because they thought the patient, or in this case the patient’s parent, was making a bad choice or had a different view of the patient’s ‘best interests’.   What is reasonable in this context has to be providing care in accordance with the law and the paramedic’s Code of Conduct all of which require consent prior to treatment and recognise that it is a child’s parents that are best placed to decide what care is wanted and what is in the child’s best interests.

The best action guide is in the Child Protection Act 1990 (Qld). That allows that a child of ‘immediate risk of harm’ can be taken into custody by an authorised officer or police officer (s 18) and that officer can authorise medical treatment (s 18(7)). It follows that in the example given, and depending on the urgency of the matter, a paramedic would be best advised to make a notification of a child at risk of harm (s 13A) or call for police backup in the hope that the police may take action.

If the situation is really one of urgent life or death decision making in circumstances where the child does not have a diagnosed illness where they are expected to die then I turn to my own book – Australian Emergency Law (Federation Press, 4^th ed, 2013) p 59 – where I said:

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.

Conclusion

If a paramedic really believes that the child is going to die without immediate intervention and the parent’s decision is not in the best interests, then, to use a familiar proverb, it may be ‘better to ask forgiveness than permission’  recognising that forgiveness may not be forthcoming. In those circumstances the paramedic has to back themselves and have confidence in their assessment of the situation.  Where the matter is not an immediate issue of life or death, then seeking help from the family’s medical practitioner, the police or the  under the Child Protection Act 1990 (Qld) would be a more appropriate step.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.