Today’s correspondent has

…had a range of robust discussions with students relating the decline of potentially lifesaving care. I have a question regarding the definition of ‘the child’s best interests’. 

  1. Whose perspective is right with regard to the ‘child’s best interests’? 
  2. If a family has known and established religious objections or alternative medicine approach to healthcare and would object to western medicine in any other instances, would it be reasonable to acknowledge that in ‘this’ instance they [the parents] believe they are acting in the child’s best interests even though as health care professionals we believe that failure to treat the patient is very likely to result in disability or death?
  3. Conversely, in the scenario where paramedics do believe that the parents are not acting in the child’s best interest and proceeded with care and the outcome still resulted disability or death, despite the high likelihood of the outcome being due to the severity of the child’s presenting condition, what recourse is there for parent’s to claim that the treatment provided to the child by the paramedics without consent has resulted in this outcome? 
  4. Additionally, are there ever any legal consequences when parent’s religious or alternate beliefs result in death or disability for their children? 

With respect to the other questions, I don’t know my correspondent’s jurisdiction, so I’ll answer this with reference to NSW legislation.  For an earlier answer dealing with Queensland law but with similar conclusions see Treating children when their parents won’t give consent (October 7, 2024).

There is no simple answer to the first question, it depends on all the circumstances. In Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15 the High Court had to consider whether parents could consent to the sterilisation of their seriously disabled daughter.  Mason CJ, Dawson, Toohey and Gaudron JJ said (at [26] of their judgment; emphasis added):

Where their child is incapable of giving valid consent to medical treatment, parents, as guardians, may in a wide range of circumstances consent to medical treatment of their child who is a minor. This is clear in the common law and, by implication, in the Emergency Medical Operations Act [1973 (NT)] which creates an exception to the need for parental consent in the case of emergency treatment. It is also implicit in the duty to provide the necessaries of life imposed by ss.149 and 183 of the [Criminal] Code [Act 1983 (NT)]. Where this parental power exists, two principles are involved. First, the subjective consent of a parent, in the sense of a parent speaking for the child, is, ordinarily, indispensable. That authority emanates from a caring relationship. Secondly, 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.

Brennan J was critical of the best interests test. He said (at [14] of his judgement)

…  in the absence of legal rules or a hierarchy of values, the best interests approach depends upon the value system of the decision-maker. Absent any rule or guideline, that approach simply creates an unexaminable discretion in the repository of the power. Who could then say that the repository of the power is right or wrong in deciding where the best interests of an intellectually disabled child might lie when there is no clear ethical consensus adopted by the community? …

That is of course the issue implied in the question, what happens when the parents and the medical professionals disagree on what is in the child’s best interests?  Where there is a disagreement, and the consequences are likely to be catastrophic there is legal power vested in the courts to make a ruling on what is in the child’s best interests, and they can authorise treatment (Marion’s case). In extreme and urgent circumstances child welfare authorities can take children into care and authorise treatment (see for example Children and Young Persons (Care and Protection) Act 1998 (NSW) s 46 ‘Emergency care and protection orders’ and s 157 ‘Care responsibility’).

There are some legislative provisions to allow in some state’s medical treatment, and in others blood transfusions, to be given to children even where the parents object where medical practitioners believe the treatment is necessary to save the child’s life (see for example Children and Young Persons (Care and Protection) Act 1998 (NSW) s 174 ‘Emergency medical treatment’).  Those provisions apply to medical practitioners not paramedics.

Let me then turn to the questions:

1, Whose perspective is right with regard to the ‘child’s best interests’?

That is a question of fact. Ultimately it depends on the ‘value system’ of the decision maker. So who is the decision maker? Prima facie it is the child’s parents, and the general presumption is that a child’s parents are the best to judge what is in the child’s best interests.  Where there is a dispute then others have the power to review and make alternative decisions.

2. If a family has known and established religious objections or alternative medicine approach to healthcare and would object to western medicine in any other instances, would it be reasonable to acknowledge that in ‘this’ instance they [the parents] believe they are acting in the child’s best interests even though as health care professionals we believe that failure to treat the patient is very likely to result in disability or death?

I think we can absolutely say that many parents believe they are acting in their child’s best interests even if the consensus of others is that they are wrong. There is a difference between being wrong, even misguided, and being malicious or acting out of some motivation other than a genuine belief in what is in the child’s best interests. 

3. Conversely, in the scenario where paramedics do believe that the parents are not acting in the child’s best interest and proceeded with care and the outcome still resulted disability or death, despite the high likelihood of the outcome being due to the severity of the child’s presenting condition, what recourse is there for parent’s to claim that the treatment provided to the child by the paramedics without consent has resulted in this outcome?

Whether the parents could ‘claim that the treatment provided to the child by the paramedics without consent has resulted in this outcome’ would depend entirely on the evidence as to the child’s condition, their prognosis and the effect to the treatment given.  Whether the treatment ‘caused’ a poor outcome has nothing to do with the question of whether it was administered with or without the parent’s consent.

4. Additionally, are there ever any legal consequences when parent’s religious or alternate beliefs result in death or disability for their children?

There certainly there have been ‘legal consequences when parent’s religious or alternate beliefs result[ed] in [the] death … [of] their child…’ most recently in Queensland where 14 members of a religious group were found guilty of the manslaughter of an eight-year old who died after they withheld her insulin and ‘waited for God to do his work’ (see ‘Religious group members found guilty of manslaughter of eight-year-old Elizabeth Struhs’ ABC News (Online) 29 January 2025; and if you want to read the judgment see  R v Struhs [2025] QSC 10).  Elizabeth’s parents were both sentenced to 14 years imprisonment whilst others received sentences ranging from 6 to 13 years (‘Sect members sentenced over ‘slow and painful’ death of eight-year-old Toowoomba girl’ SBS News (Online) 26 February 2025).

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.