It may seem sensible that the parents of a child should always act in their best interests, and actions in regards to a child’s best interests, may include instances where consent to medical treatment is required – especially if the child is unable to do so due to their age, or any other relevant matter. The source of the best interests of the child approach in Australian law is derived from the common law, and is also reflected via statue as well. The High Court in Secretary, Department of Health and Community Services v JWB and SMB [Marion’s Case] confirmed that when a child is either an infant or too young to give consent to medical treatment, then the law bestows the power onto parents to provide consent 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.”
The judgment in Marion’s Case and also the House of Lords decision in Gillick v West Norfolk and Wisbech Area Health Authority has played an influential role in this area of law, and is confirmation of a parent’s common law duty to provide for the necessaries of life for their child, which can also include medical treatment. However, questions in regards to the limits on parental power to consent; what does the best interests of child mean under the law; and under what circumstances can the courts intervene and override the non-consent of a child and the parent in regards to medical treatment, are all pertinent lines of enquiry which is worth further exploration.
It’s generally recognised in common law that one of the fundamental duties of being a parent is the maintenance and protection of a child, with the duty also including providing consent to medical treatment on behalf of the child when necessary.
The duty of parental responsibility is enshrined in the statutory provisions in criminal law in all jurisdictions, and we can turn to s 43A of the Crimes Act of New South Wales as our example, with the section stating the following:
“(1) In this section:
"child" means a child under 16 years of age.
"parental responsibility" means the duties, powers, responsibilities and authority in respect of a child that, by law, parents have in relation to their children.
(2) A person:
(a) who has parental responsibility for a child, and
(b) who, without reasonable excuse, intentionally or recklessly fails to provide the child with the necessities of life,
is guilty of an offence if the failure causes a danger of death or of serious injury to the child.”
Parental responsibility is also included in s 61B of the Family Law Act and states that parental responsibility in relation to a child means all the duties, powers, responsibilities and authority which by law, parents have in relation to a child.
Are there any limits to parental consent in relation to medical treatment for a child?
In regards to the limitations on parental power to consent to medical treatment for a child, there are two streams which need to be considered: limitations to consent in special cases; and the limitations to consent in relation to a child’s best interests.
Marion’s Case established that the power of parents to consent to medical treatment is limited in instances where the treatment sought is major or complex in nature, and that the consent of parents will be insufficient, and in such a situation, the courts may intervene.
The issue in Marion’s Case related to the non-therapeutic sterilisation of an intellectually disabled girl, in which the High Court held that:
“… except where sterilisation is an incidental result of surgery performed to cure a disease or correct some malfunction, the decision to sterilise an intellectually disabled minor falls outside the ordinary scope of parental powers and therefore outside the ordinary scope of the powers, rights and duties of a guardian…”
Other instances where the courts have determined that judicial permission may be required in regards to medical treatment of a child, have included matters relating to:
- gender reassignment;
- termination of pregnancy;
- indefinite detention of a child for medical treatment and sedation.
Consent (or refusal) to medical treatment must be made regarding the child’s best interests
The power of parents to consent, or to refuse medical treatment, can only be exercised in the child’s best interests, and the High Court in Marion’s Case determined that in instances where there exists the parental power to consent to treatment, there are two principles which will be in operation:
“First, the subjective consent of a parent, in the sense of a parent speaking for the child, is ordinarily indispensible…. 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.”
How do parents decide on what is in the best interest of a child when it involves medical treatment?
Decisions in relation to what is in the best interests of a child, will generally be associated to matters regarding the physical, psychological and emotional well being of a child – which can easily be determined in most cases. However, difficulties may arise when the matter is more complex, and there is little guidance as to what factors are to be considered in determining the best interests of the child in circumstances involving more complexity.
Issues such as the prescribing of medicine, administration of a vaccine, or the splinting of a broken bone are matters of medical treatment which are for the most part, uncontroversial, and it is relatively clear that such treatments improve and preserve the health of the child, whilst being in their best interests.
In contrast, procedures which are illegal – such as female genital mutilation – are not considered to be in the best interests of the child, and have been expressed as such in statute, and a parent cannot consent to such medical treatments.
Moving back to our point of a medical issue where it is more complex, then the approach becomes less clear with Brennan J in Marian’s Case highlighting the difficulties involved:
“… it must be remembered that, 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…the child might lie when there is no clear ethical consensus adopted by the community?”
What types of matters can parents consider when deciding what is in the best interests of the child?
When discussion revolves around the types of matters in which parents are able to consider that fall within the child’s best interests, the courts remain unsettled on the issue.
Questions may involve whether parents are to adhere to an objective standard in regards to a child’s best interests, or are parents able to take into account their personal views are issues which have yet to be completely answered by the judiciary.
In Marion’s Case, McHugh J said in regards to the welfare of a child, parental authority “… must be determined objectively and not by reference to the good faith opinions of the parent.”
However, as an illustration in relation to the difficulty of the issue, Deane J in the same matter gave more scope to the views of the parents, with his Honour stating:
“That which constitutes the welfare of a child in a particular case falls to be determined by reference to general community standards, but making due allowance for the entitlement of parents, within the limits of what is permissible in accordance with those standards, to entertain divergent views about the moral and secular objectives to be pursued for their children.”
This article is a broad overview in regards to the difficult area of children and medical consent. If you have any issues or concerns in relation to any area of family law, please seek the assistance of a family law practitioner who will be able to help with any matter you may have.