Can a Child Consent to Medical Treatment Under Australian Law?

by The FindLaw Team

In Australia, it is generally recognised that a person under the age of 18 has not achieved legal capacity. As a consequence, parents and guardians are able to make decisions on behalf of a child regarding medical treatment. However, the law does recognise that as a child moves towards adulthood, their competency to make a decision regarding their wellbeing increases, and medical consent by the child can be given depending on the individual, and the circumstance.

When can a minor consent to medical treatment?

Most States will consider a child 16 years of age or older, as sufficiently mature enough to consent to medical treatment if they are able to comprehend the nature, and the risks of the medical treatment sought.

If a minor is considered to have the capacity to consent to medical treatment, the right also extends to professional confidentiality, preventing a doctor from disclosing to a parent or guardian the nature or purpose of the medical treatment. Alternatively, a minor who is considered competent to give valid consent – and refuses – can bring an action against a doctor who continues the treatment. In such a scenario, even the consent of the parent or guardian is usually insufficient for the treatment to continue.

Can a doctor prescribe contraception to a minor?

Guided by English case law, medical practitioners in Australia are able to give advice, or prescribe contraception to a minor without parental knowledge when they are seen to have the capacity to give informed consent on their own behalf. The decision of the courts rests on the idea as a child grows older, their authority increases, and parental powers over the child diminishes.

When is consent for medical treatment not necessary?

During a medical emergency, treatment may be carried out as a matter of necessity in relation to the best interests of the patient, regardless of whether or not consent has been obtained. Further examples of when medical treatment can be performed without consent, is when a State department overseeing the welfare of the child makes an application to the court to perform a procedure, such as sterilisation, if it is judged that the treatment being sought is in the best interests of the child.

Judging whether a child has the maturity to consent to medical treatment will always be assessed on an individual basis. Ultimately, medical practitioners and the court will always make a decision based upon the best interests of the child.   



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