Children and consent

Quick guide

• In many cases, children younger than 18 years of age can independently provide consent for medical treatment, or refuse it, if a doctor assesses that they have capacity to make that decision themselves.
• If a child cannot consent to medical treatment, generally either parent can provide consent as long as the treatment is in the best interests of the child.
• Court approval is needed for certain treatments defined in legislation as special medical procedures for children.
• If there is a dispute about what is in the best interests of the child, it may be necessary to approach the court to decide on appropriate treatment.

Parents and guardians provide consent for their child’s health care in most cases. However, if a child understands the significance of their decision and has the required decision-making capacity, they may provide consent themselves. In some circumstances, a court will need to make an order about a child’s treatment. As with adult patients, if the situation is a true clinical emergency, consent is not required to provide immediate treatment.

When can a child consent?

The law presumes that people have capacity to make decisions about their health care at 18 years of age. In South Australia it is 16 years. However, before reaching this age children can develop the capacity to make decisions about their health care themselves. Capacity to consent is specific to the decision being made. This means that a child may be able to make some medical decisions, but may not have the capacity to make all medical decisions independently.

'Gillick competence’ and the ‘mature minor’

A child is capable of giving consent when they achieve “a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.” This is the wording of the legal test from the case that led to a child’s capacity being referred to as ‘Gillick competence’ (after the name of the relevant case). The concept is also referred to as someone being a ‘mature minor.’ The legal test was accepted in Australia in a High Court case known as Marion’s case. 

Children develop this capacity at different rates. When deciding if a child has decision-making capacity, you should consider the child’s age, their insight into the nature of the treatment and their understanding of its possible side effects. Other relevant considerations include the child’s intelligence, attitude and personality, and health. One of the challenges can be assessing if a child understands the long-term implications of a procedure or treatment. Generally, the riskier the procedure, the more carefully you should assess whether the child fully understands the nature of the procedure. 

If a child is competent to make decisions about their own treatment, their consent alone is usually sufficient.  This also means it is not necessary or appropriate to contact the child’s parent or guardian without the child’s consent. The child is entitled to the same confidentiality of their medical information as an adult. Nevertheless, if you feel it would benefit the child to inform their parents about their condition and proposed treatment, you should discuss this with the child. 

Public and private hospitals may also have their own policies regarding the age that a child can provide consent independently of their parents. While these policies don’t override the law, you should check for any specific requirements in the hospitals or organisation where you work.  Seek advice from Avant if you are uncertain.

Disputes between parents and children

If a child has sufficient maturity to provide consent and there is a dispute between the child and their parents about appropriate treatment, then the wishes of the child will outweigh those of the parents subject to any legal exceptions.

Parents providing consent

Where the child does not have sufficient maturity to consent to treatment, parental consent is required. In most cases, one parent can provide that consent, or refuse to do so, on behalf of their child. However, a parent’s rights are qualified if:

• the child has capacity to make their own decisions (see above on ‘Gillick competence’ and the ‘mature minor’)
• there is an applicable parenting order in place (see below regarding separated parents)
• there is a question about whether the consent or refusal is in the best interests of the child, in which case the court may be asked to intervene
• the treatment is one which always requires court authority (see below regarding special medical procedures).

Separated parents

If parents separate, the parent who is with the child at the time of the treatment decision will generally be able to provide consent. However, some court orders only permit one parent to make medical decisions for the child or specify that one parent must notify the other parent before consenting to medical treatment. If parents are separated or divorced, you should ask whether there are any parenting orders in place for that child and obtain a copy.  Keep the copy in the child’s medical record.

Disputes between parents

Doctors can find themselves in the middle of a dispute when one parent consents to treatment and the other objects. A court order may be required to settle this dispute and you should seek legal advice in this situation.

Courts making decisions

The Supreme Court in all states and territories and the Family Court of Australia have powers to protect the welfare of children. The main consideration for judges making these decisions is the best interests of the child. Legislation in some states also empowers tribunals to make certain decisions on behalf of children.

There are two main reasons why the courts may be approached to provide consent to or refuse medical treatment for a child.

Disputes about the best interests of the child

Courts may use their powers to give consent to the treatment where there is a dispute about what is in the child’s best interests. This may include where there is a disagreement between parents or between parents and treating clinicians. The court may also use its powers to settle a dispute between a child who is ‘Gillick competent’ or a ‘mature minor’ and their parents or clinicians.

The court considers several factors to determine what is in the best interests of a child. The circumstances of each individual case will influence the relevant factors and the weight given to different factors. While the following list is not exhaustive, some of the main factors that the court will consider include the:

• condition of the child
• nature of the proposed procedure or treatment
• reasons it is proposed to be carried out
• alternative procedures or treatments that are available
• views of the child, their parent or guardian

physical effects and the psychological and social implications for the child of authorising or not authorising the treatment.

Special medical procedures

The authorisation of a court, or tribunal in some states, is required for certain treatment defined as ‘special medical procedures’, even when the child, parents and doctor all agree.

Special medical procedures are those:

• that are irreversible and invasive
• where there is a significant risk of making the ‘wrong’ decision and the consequences of a wrong decision are particularly grave, and
• where the treatment is non-therapeutic.

What is considered a special medical procedure can change over time. There is also developing law about what consent is needed for gender affirming hormone treatment, as well as variations in the legal position across jurisdictions.

You should seek legal advice or contact Avant before approaching a court about making orders to settle a dispute about what is in the best interests of a child or regarding a special medical procedure.

Cosmetic surgery and procedures

There are specific requirements for anyone under 18 years old regarding cosmetic surgery and non-surgical cosmetic procedures. These apply based on the patient’s age regardless of whether the child may be considered a mature minor. Practitioners must comply with any legislation in the relevant state or territory regarding cosmetic treatment for anyone under 18.

There are also additional steps set out in the Medical Board of Australia’s Guidelines for registered medical practitioners who perform cosmetic surgery and procedures including on children. These include, for example, minimum cooling-off periods between consent the proposed treatment, being three months for cosmetic surgery and seven days for non-surgical cosmetic procedures

Medicare

Medicare recognises that children may seek medical treatment independently of their parents or guardians. Children can have their own Medicare card from 15 years of age. Doctors can also bulk-bill Medicare for consultations with patients who are 14 years of age without advising the child’s parent. If parents request information from Medicare about their child who is aged 14 years or over, they need the child’s permission.

My Health Record

Generally, a parent or guardian will have control over a child’s My Health Record until the child turns 14. At this time, parents will be automatically removed as the child’s authorised representative. Children under 14 who can prove to the Australian Digital Health Agency that they are a mature minor can register themselves and take control of their existing record.

Additional resources

Avant factsheet - Consent in care: the essentials

The cases mentioned above are:

Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7, [1985] 3 WLR 830, [1985] 3 All ER 402, [1986] AC 112, [1986] 1 FLR 229

Australia Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992)

You can watch our video about these cases here: Gillick and Marion's case