Today’s correspondent says:

I have a question regarding the Children and Young Persons (Care & Protection) Act 1998 (NSW) s174 which says: 

A medical practitioner may carry out medical treatment on a child or young person without the consent of—

(a) the child or young person, or

(b) a parent of the child or young person,

if the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life or to prevent serious damage to his or her health.

In a previous blog post, you noted that the reference to ‘a medical practitioner’ was specifically a doctor and not a paramedic (see https://australianemergencylaw.com/2016/05/05/paramedics-treating-children/).

My question is, what (if any) legislature protects the provision of Paramedics in providing medical treatment without consent to young persons?

My hunch is that they would be perhaps protected under the common law principle – Doctrine of Necessity as a more appropriate principle?

To reiterate, the term ‘medical practitioner’ is not defined in the Act.  It does not mean any registered health practitioner. If it did there would be no need to separately deal with dentists as they, too are registered under the Health Practitioner Regulation National Law. The Health Practitioner … law says ‘”medical practitioner” means a person who is registered under this Law in the medical profession’; clearly not a paramedic who is registered in the paramedicine profession.  

So, what legislation allows paramedics to treat children without consent? No legislation. Indeed, it is the common law that allows the delivery of treatment to people who are incapable of consenting.  

However, the law generally provides that it is the child’s parents that can give, or refuse consent for their treatment of their minor children.   The doctrine of necessity does not allow treatment that is contrary to the patient’s known wishes and by extension, the treatment of children where that is contrary to known wishes of the child’s parents.  It was because that is the law that s 174 is there. It not only allows treatment where the patient’s wishes are not known, it allows treatment regardless of the child’s or parent’s wishes.  It allows treatment ‘without consent’ so that the parent’s consent is irrelevant.

For paramedics the question is more complex.  Whilst parents can give, or refuse consent, that is said to be limited to a decision that is in the child’s best interests (Secretary of the Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15).  Generally, where there is a significant decision to be made, doctors and families discuss the various options all of which come with harms and benefits.  There may be differences of opinion as to what is in the child’s ‘best interest’ but generally it would be said that the best people to decide are the patient and, depending on the child’s maturity, their parents. But there will also be cases where there is no serious question as to what is in the child’s best interest and a refusal by parents will be rightly condemned ((see ‘Religious group members found guilty of manslaughter of eight-year-old Elizabeth Struhs’ ABC News (Online) 29 January 2025).

Paramedics may not have the luxury of time so they have to make a very quick judgment as to whether the parent who is refusing consent is competent to make the decision and whether they are making a decision that is objectively in the patient’s best interest.  It may become an issue of what do paramedics genuinely believe is required – a parent making a poor decision is of less significance if that is not going to cause long term issue but it’s quite different if it is a matter of life or death.  

My prediction is no-one is going to be too concerned if a paramedic treats a child whose life is at risk in the face of a parental objection where that objection is first expressed at the time of the emergency. It’s quite different if the child has a long term health condition where in consultation with the treating team treatment decisions have been made and the parents are simply urging paramedics, who were not previously involved with the patient’s care, to honour those informed decisions.

For more details see Treating children when their parents won’t give consent – NSW (March 15, 2025).

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.