Today’s question relates to the Mental Health and Wellbeing Act 2022 (Vic) but could apply in any jurisdiction.  The question came from

… a discussion with a colleague today regarding the Victorian Mental Health and Wellbeing Act (2022) and how it applies to children. We were discussing what we should do if we encounter a situation where we have a child (for arguments sake let’s say they’re 10 years old) presenting with a mental illness that we reasonably believe makes them a risk of causing imminent harm to themselves or others. The child is refusing transport, however the parents are consenting to treatment and transport on behalf of the child. Would we still need to detain this patient under Section 232 of the Act, or is the parent’s consent on behalf of the child considered sufficient for the child to be transported without being detained under the Act?

If we start at first principles, imagine that instead of a mental illness the child has a broken arm but doesn’t want to go with you.  I don’t think anyone would doubt that the parent’s consent to treatment and transport was sufficient.

In Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15 the High Court confirmed that a parent can give consent to treatment that is in the child’s best interests. A child can give consent to medical care if they are ‘Gillick competent’ that is (Marion’s case [6] (McHugh J));

A minor has that capacity where he or she possesses sufficient intellectual capacity and emotional maturity to understand the nature and consequences of the procedure to be performed. Consequently, if a minor lacks the intellectual capacity and emotional maturity required to understand the nature and consequences of a medical procedure, his or her agreement to the carrying out of that procedure will be of no effect.

The Gillick test does not define competence by age but by development. ‘This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology’ (Marion’s case [20] (Mason CJ, Dawson, Toohey and Gaudron JJ)).   Where a child cannot give consent others must be able to.   McHugh J said (at [8] of his judgement):

… the common law would be socially unacceptable and deserving of condemnation if its doctrines led to the result that, in the absence of an emergency, the carrying out of an ordinary medical procedure on a minor constituted an assault whenever the minor lacked the capacity to consent to the procedure. Consequently, the common law has conferred power upon a parent who has the lawful custody of a minor to give a lawful consent to the carrying out of medical procedures on that minor…

Mason CJ, Dawson, Toohey and Gaudron JJ said (at [15] of their joint judgment):

The sources of parental power, including the power to consent to medical treatment of the child, where the parent is also a guardian of a child of a marriage, are the Family Law Act 1975 (Cth), the common law, and [in the context of that case] the [Criminal] Code [(NT)]. Subject to the order of a competent court, each parent of a child under 18 years is a guardian of the child…

In some states there is legislation to confirm the right of a child to give consent eg the Minors (Property and Contracts) Act 1970 (NSW) s 49 provides that there is effective consent for treatment of a child if the child is over 14 and consents, or under 16 and their parent consents.  Between 14 and 16 the consent of either would be effective.  Over 16 the child’s consent is required even though he or she is, at law, a minor.

The Medical Treatment Planning and Decisions Act 2016 (Vic) provides that a person is competent to make decisions if they met the criteria set out in s 4(1).  The Act says that an ‘adult is presumed to have decision-making capacity’ (s 4(2)) leaving it open that a child will have capacity if they meet the tests in s 4(1) but they are not presumed to have that capacity ie it must be established if it is an issue.

But will a 10-year-old child have that capacity?  And even if they do does that override the parent’s capacity to give consent?  If we assume the common law reflects the law in the NSW Statute then it may be the case that a child can give or refuse consent but so too can their parent.  In the example of a 10-year-old with a fractured arm, I don’ think there would be any doubt, regardless of the child’s protests, that the consent of their parent would be sufficient consent to allow paramedics to treat and transport the child.

If we then change the nature of their condition to a mental illness the answer remains the same.  If a 10 year-old needs medical care either for a mental health or a physical health emergency, their parent’s consent will be sufficient (Marion’s case).

If we look at the specific terms of the Mental Health and Wellbeing Act 2022 (Vic) we should first note that a paramedic does not have a right to take a ‘person into care and control’ under s 232. That power is given to police and protective service officers (see Paramedics, police and the Mental Health and Wellbeing Act 2022 (Vic) (December 14, 2024)).   Assuming paramedics want to call the police to exercise their power, one condition is that it must be ‘necessary to take the person into care and control to prevent imminent and serious harm to the person or to another person’. Section 232 is in Chapter 5—Mental health crisis response and transport by authorised persons.  These provisions beg the questions of why would it be necessary to take a person into police care and control if the patient, or in this case the parent was giving effective consent to treatment and transport?  Where is the crisis if the patient, or in this case the patient’s parents are giving consent.

Where a child does not have capacity to give consent, their parent may give consent (s 92(2)).   A 10-year-old child, as discussed above, will not have the relevant capacity. The Act focuses on ensuring treatment is delivered with dignity and in the least restrictive way possible (see ss 16 and 18).  Taking a child into police custody when there is effective parental consent would be contrary to those principles.

Conclusion

If paramedics in Victoria ‘encounter a situation where … a child (for arguments sake let’s say they’re 10 years old) presenting with a mental illness that we reasonably believe makes them a risk of causing imminent harm to themselves or others. The child is refusing transport, however the parents are consenting to treatment and transport on behalf of the child…’ then they have sufficient legal authority to treat and transport the child, just as they would have sufficient authority if the child had broken their arm and was refusing treatment but consent was given by the child’s parents. There is no need to call police to have them detain the child under the Mental Health and Wellbeing Act 2022 (Vic). 

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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.