Today I’m asked to 

… shed some light on the below comment that was made in a First Aid course recently that one of colleagues of my attended recently. Is this statement correct?

“If the casualty is under 18 years old, then the consent required is that of the parent or legal guardian. Consent can be implied if the parent or guardian is absent, unconscious, delusional, intoxicated, deemed mentally unfit to make decisions regarding their child’s safety, or if the responder has a reasonable belief that this is the case. A responder must not withhold life-saving treatment (ie CPR) if the parent/guardian does not give consent. The parent/guardian is then considered neglecting and consent is implied”

The conclusions are probably correct enough but the rationale is not. The concept of implied consent is not the law in Australia – see Legal justification for treating the unconscious (April 11, 2021).  The ARC does not refer to ‘implied consent’.  Guidance Statement 10.5.2 – Legal and Ethical Issues Related to Responding to Emergency Situations and Resuscitation – Consent says at [1.2]:

There may be circumstances where consent cannot be gained (e.g. if the patient is unconscious or otherwise lacks capacity) but withholding treatment would cause significant harm.

In these cases, the doctrine of necessity under common law allows treatment without consent. The better legal view is that necessity provides a defence if treatment proceeds in good faith, is reasonable and is in the best interests of the patient.

While treatment normally requires consent, a lack of decision-making capacity should not prevent necessary medical intervention if it is in the patient’s best interests.

The key legal factors determining whether treatment can proceed without consent include:

  • Whether the person lacks decision-making capacity.
  • Whether an advance care directive exists.
  • The degree of urgency of the situation.
  • Whether a substitute decision-maker is available and willing to provide consent.

If the person is unable to give consent and no substitute decision maker is present, the legal requirement to obtain consent before assistance or treatment is waived under Common Law and Statute law in several circumstances.

All of that is true regardless of the patient’s age. 

The age of 18 is not a ‘magic’ age of competence.  People are competent if they are capable of understanding the advice they are being given and to take that into account when making decisions.   In NSW a child who is competent and over the age of 14 can consent, and by implication refuse consent, to treatment (see Minors (Property and Contracts) Act 1970 (NSW) s 49). 

I said this in my book Emergency Law (2013, 4th ed, Federation Press) pp 58-59:

As a general rule parents have the right to give consent to the treatment of their children. 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, [1992] HCA 15).  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).  Accordingly 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 (In re T [1992] 4 All ER 649, [1992] EWCA Civ 18).  (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.

Conclusion

The justification of treating a child or anyone who cannot consent is not implied consent and first aid instructors should stop saying that it is, and first aid organisations should stop writing it in their texts.  Given most first aid texts apply the Australian Resuscitation Guidelines the authors should read the relevant guideline and adopt that in their texts. 

In terms of the statement made at the first aid course, a better explanation would be:

Before providing first aid, consent should be obtained from the patient.  If the casualty is under 18 years old they are still able to give effective consent if they have sufficient understanding and intelligence to enable him or her to understand fully what is proposed.  For non-competent children one would normally look to their parent or guardian to give consent for treatment.  If there is no-one available to give consent, eg if the parent or guardian is not there, or is themselves not competent eg due to their own injuries, then treatment that is reasonably required and in the patient’s best interests may be given. 

If the parent or guardian refuses to give consent for treatment that is required as a matter of urgency to save the child’s life (eg CPR) or prevent long term injury or disability then consideration has to be given as to why (noting the limited time for such consideration).  If the child is terminally ill and their death is expected, it would be appropriate to withhold resuscitation. If the illness or injury was sudden and unexpected, then the parent’s decision can be ignored on the basis that the decision maker is either not fully informed or not acting in the child’s best interests.

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