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Understanding and Navigating Informed Consent for Children and Parents

By August 5, 2021 No Comments
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Why is consent important?

Consent is the legal mechanism by which acts that could, at law, be assault or trespass become legal. The required standard is informed consent.

A person has to have information to be able to give informed consent.

As a lawyer in Australia, a good place to start is always with the High Court of Australia.

In Rogers & Whitaker [1992] HCA 58, the High Court applied the statement of King CJ from the Judgment of the Supreme Court of Canada in Reibl v. Hughes ((30) (1980) 114 DLR (3d), at p 13):

“What is under consideration here is the patient’s right to know what risks are involved in undergoing or foregoing certain surgery or other treatment.”

The High Court said of that:

“In our view, it is correct”.

The Court determined:

“There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient’s contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended” ((33) Chatterton v. Gerson (1981) QB 432, at p 443).

The Court went on:

“But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession.” (emphasis added)

The Court went on:

“… whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices.” 

“Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient’s apprehended capacity to understand that information.”

The Court went on:

“Consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed ((37) Chatterton v. Gerson (1981) QB, at p 443). (emphasis added).

“In Reibl v. Hughes the Supreme Court of Canada was cautious in its use of the term ‘informed consent’” ((38) (1980) 114 DLR (3d), at pp 8-11).

The High Court agreed that the factors referred to in F v R by King CJ ((39) (1983) 33 SASR, at pp 192-193):

“…must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.”

This is how the High Court dealt with the Appellant’s argument on the issue of breach of duty.

By majority, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ dismissed the appeal.

Gaudron J said:

“I see no basis for treating the doctor’s duty to warn of risks (whether involved in the treatment or procedures proposed or otherwise attending the patient’s condition or circumstances) as different in nature or degree from any other duty to warn of real and foreseeable risks.”

The appeal was unsuccessful.

Can children consent?

Two important legal concepts in considering the issue of consent and children are the concept of the Gillick competence and the concept of the parens patriae jurisdiction.

The term developed as a result of an English case of Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112.  The Court, in that case, had to consider whether a doctor who prescribed contraception to a girl under the age of 16 years had committed an offence under legislation similar to sections of the Queensland Criminal Code. The doctor had in fact been charged with encouraging intercourse with a girl under 16 years and aiding and abetting unlawful sexual intercourse.

In that case, the Court decided that provided the child was sufficiently mature to weigh the advantages and disadvantages of the treatment, the absence of any parental consent did not render the doctor’s conduct unlawful. While not binding on Australian Courts, the concept has been very significant in the development of matters relating to medical treatment involving children in the latter part of their adolescence.

In Australia, at common law, a minor, that is a person under the age of 18, is considered to be capable of consenting to medical treatment when he or she achieves a sufficient understanding and intelligence to be able to understand fully what is proposed.

The High Court considered such significant matters in a case known as “Marion’s Case”.  The citation, Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA at 15, is an important decision.

It involved a case where a child who was, by the time of the appeal, 14 years of age.  She was said to suffer from mental retardation.  Different expressions were used throughout the case.  She had intellectual disability, severe deafness and epilepsy and ataxic gait and behavioural problems and could not care for herself.

Her parents applied to the Family Court of Australia for an order authorising performance as a hysterectomy and an ovariectomy on Marion.  Alternately, they sought a declaration it was lawful for them to consent to the performance of the procedures.

The Secretary of the Northern Territory Department of Health and Community Services supported by the Attorney-General of the Commonwealth argued that the guardian of a child has no power to authorise the sterilisation of a child and that application to a court for authorisation of such an operation is mandatory.

The appropriate jurisdiction to authorise the sterilisation of a child sat with the Family Court.

The parents argued that the involvement of the Family Court is optional and is of a supervisory nature only.

The Human Rights and Equal Opportunity Commission intervened in the proceedings pursuant to section 11(1)(o) of the Human Rights and Equal Opportunities Commission Act 1986 (Cth) on the basis that they had the capacity for such intervention with the leave of the court in “proceedings that involve human rights issues.”

The Commission argued that such a procedure could not be carried out lawfully without the authority of an appropriate judicial body.  This requirement was a proper exercise of the parens patriae or statutory welfare jurisdiction of the Family Court.

The High Court considered matters of criminal consideration.  The Court said:

“Sterilisation comes within the category of medical treatment to which a legally competent person can consent.”

The Court asked the question: “What, besides personal consent, can render surgical intervention lawful?”[1]

An adult with a permanent incapacity to consent to major medical treatment would be dealt with in the Northern Territory by the Adult Guardianship Act.

The Court had to consider what happens to a permanently incapacitated child.  The Court examined the sources of parental power.

At paragraph 18, the High Court said:

“…the first issue relates to the important threshold question of consent: whether a minor with an intellectual disability is or will ever be capable of giving or refusing informed consent to sterilisation on his or her own behalf.”

A second question was considered: whether sterilisation fell into a special category outside the scope of a parent to consent to treatment. Should such an intervention be excluded from the scope of parental power?

In New South Wales and South Australia, the minor’s capacity to give informed consent has been regulated by statute. The Northern Territory where Marion’s Case arose still applied the common law.

The High Court referred to Gillick as “of persuasive authority”.

The High Court quoted Lord Scarman at [29] ibid at pp 183 – 184:

“Parental rights … do not wholly disappear until the age of majority. … But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law … is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child.”

The Gillick concept is not related to a fixed age.

Generalisation was considered to be between the ages of 11 and 14. There was a recognition that there is a need for future as well as present assessment in the case of children with intellectual disabilities.

The Court said:

“The capacity of a child to give informed consent to medical treatment depends on the rate of development of each individual. And if Gillick is taken to reflect the common law in Australia, as we think it now does, these propositions are true as a matter of law in the Northern Territory.”

Marion’s Case is an extremely interesting and significant decision.

The concept of Gillick competence has developed significantly in our jurisprudence.

In the paper, ‘Refusal of medical treatment – A Child’s Prerogative’ by Pip Trowse (Associate Lecturer, Health Law Research Program, Faculty of Law, Queensland University of Technology) considered whether the decision of a ‘Gillick competent’ child can and should be overridden by the Court.

It is important to understand and remember that the parens patriae jurisdiction is a discretionary jurisdiction, which means that just because the power exists does not mean it is always appropriate to apply the power.

The concept of consent is seen as transforming what might otherwise be unlawful into acceptable contact.  A patient must have the requisite capacity to consent to treatment. As said by the author, “A child is presumed incompetent unless he or she satisfies the test of ‘Gillick competence’”.

In deciding whether a person has the capacity to make the relevant decision, it is important for them to be able to have the level of competence required to make the decision.  The greater the risk, the greater the competence required because of the significance of the consequences. A decision which has minor consequences is considered to require less capacity.

In essence, what is the respect that should be granted to a child who has been determined to be ‘Gillick competent’ in their decision making.

Whether a child is Gillick competent depends on an array of factors.  There is no required test medical practitioners must ask themselves, however the factors the Court will consider (and so medical practitioners may be guided) are whether the child is:

  1. Able to comprehend and retain both existing and new information regarding the proposed treatment;
  2. Able to provide a full explanation, in terms appropriate to their level of maturity and education, of the nature of the proposed treatment;
  3. Able to describe the advantages of the proposed treatment;
  4. Able to describe the disadvantages of the proposed treatment;
  5. Able to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when she should proceed with the proposed treatment;
  6. Able to understand that the decision to proceed with the proposed treatment could have consequences that cannot be entirely foreseen at the time of the decision;
  7. Able to understand that the proposed treatment will not necessarily address all or any of the psychological and social difficulties that she had before the commencement of treatment;
  8. Being free to the greatest extent possible from temporary factors that could impair judgment in providing consent to the procedure.

So, what happens if a child is ‘Gillick competent’?  Will the Court then accept the child’s decision?

The answer was given by the Full Court of the Family Court of Australia in Re Jamie (2013) FLC 93-547 and is effectively this.  If a dispute involves not only the Gillick competence of the child, but administration of the proposed treatment, then the Court should not only make a finding as to Gillick competence but also the form the treatment should take having regard to the best interests of the child and give significant weight to the child’s views in accordance with the child’s maturity and level of understanding.

So, whose consent is required to perform a medical procedure, and what if one or both parents object to treatment?  The required consent of the child, parents and doctors, was usefully summarised in Re Imogen (No. 6) [2020] FamCA 761.  In that case his Honour considered that the Court’s approval is required for non-therapeutic procedures requiring invasive, irreversible and major surgery, involving a significant risk of making the wrong decision, and where consequences of a wrong decision are particularly grave (Re Marion).

Re Imogen involved a child aged 16 years and 8 months diagnosed with gender dysphoria.  Her father consented to the treatment.  Her mother disputed the diagnosis and whether she was Gillick competent.  The Court ultimately approved the treatment, accepting the evidence of her treating psychiatrist over the opposing expert.  Justice Watts comprehensively considered the evidence.

At the end of the day, Imogen’s doctor addressed their evidence in accordance with the 8 elements of Gillick Competence and, quite frankly, had more interactions, observations and assessments of Imogen than two electronic interviews.  The competing expert “had already generally formulated reservations about an adolescent’s ability to understand all the ramifications of gender affirming hormone treatment”.

Watts J reviewed recent authority and concluded that the three stages of treatment of gender dysphoria do not require court approval where each parent and the medical practitioner agree the child is Gillick competent.

However, his Honour held that an application to the Court is mandatory if a parent or medical practitioner disputes:

  1. The Gillick competence of the child; or
  2. The diagnosis of gender dysphoria; or
  3. The proposed treatment for gender dysphoria.

Ultimately, in order to avoid the Court, consent if required from both parents, and the child if both parents and the relevant medical practitioners agree they are Gillick competent.  There is of course the obligation on medical practitioners not to administer treatment in certain circumstances.

But not all treatments can be consented to, even by everyone involved.  The Court’s approval is required for non-therapeutic procedures requiring invasive, irreversible and major surgery, involving a significant risk of making the wrong decision, and where consequences of a wrong decision are particularly grave.  For instance, the non-therapeutic sterilisation of an intellectually disabled child in Re Marion.

These principles can be applied to other medical procedures and treatments.

The first question to ask is whether the proposed treatment is therapeutic.  If it is not, then an application to the Court will be mandatory.  For instance, the sterilisation of an intellectually disabled child without any therapeutic benefit.

The second question to ask is whether both parents and the medical practitioner(s) agree (a) to the treatment and (b) whether the child is Gillick competent and if so then (c) whether the child agrees to the treatment.

Mandatory applications include treatments that are non-therapeutic and treatments to which either parent, the medical practitioner or a Gillick competent child do not consent.

If a parent does not consent to a child’s treatment, a medical practitioner should not administer treatment to a Gillick competent child without court authorisation.

So, in cases in which a dispute arises, who can apply to the Court?  The obvious parties are the parents.

In many special medical procedures cases other parties include public authorities or organisations dedicated to the welfare of vulnerable classes of children including transgender person.  For example, in Re Kelvin [2017] FamCAFC 258 the applicant was the father, and the intervening parties were the Australian Human Rights Commission, the Department of Family and Community Services, the Attorney-General of the Commonwealth, the Royal Children’s Hospital and a private organisation called A Gender Agenda.  All but the Attorney-General required leave to intervene.  A Gender Agenda’s website describes itself as:

A unique community organisation actively engaged in increasing public awareness and understanding of intersex, trans and gender diversity issues. In addition to training and education, we provide advocacy and support services, information and resources and are actively engaged in human rights and law reform.

If a medical practitioner is unable to administer treatment, the situation can be reported to the Department of Child Safety, Youth Justice and Multicultural Affairs requesting that an application be made urgently to the Family Court of Australia.  Theoretically medical practitioners themselves can make an application as a person concerned with the care, welfare and development of the child.  However it would not be without cost to the practitioner.

Bell v Tavistock

The High Court of Justice of England and Wales recently heard an application for judicial review of the practice of health services prescribing puberty-suppressing drugs to persons under the age of 18 who experience gender dysphoria: Bell v Tavistock [2020] EWHC 3274.

The application was brought by the mother of a 15 year old patient on the waiting list for the NHS Gender Identity Development Service.  At the time of the hearing the other claimant was an adult who was prescribed puberty blockers by GIDS at the age of 16, had a double mastectomy at 20 and now regrets transitioning.

As the case was brought by way of judicial review, the Court did not undertake a detailed analysis of the facts of an individual case.  The Court was asked to consider generally at what age a child could consent to using medication for the purpose of suppressing puberty, commonly referred to as ‘puberty blockers’.

The Court considered whether or not a child could competently understand both the immediate effects of the use of puberty blockers and the long-term consequences of using puberty blockers. The Court considered the following at paragraph 134:

Firstly, there is real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy, or indeed quite what it is seeking to achieve. This means it is, in our view, properly described as experimental treatment.

The Court was forced to look at the issue of the use of puberty blockers as a unique issue and could not simply apply the same thought processes that could be applied to the use of more traditional medication. However, the Court also acknowledged that the fact that a treatment is experimental, and the long-term consequences unknown, does not prevent informed consent from being given.

The Court also acknowledged that that the children who were seeking access to puberty blockers were highly vulnerable and may often seek to use the medication to stop their immediate suffering without adequately considering the long-term effects, particularly on their fertility and sexual function. At paragraph 144 the Court said:

We do not think that the answer in this case is simply to give the child more, and more detailed, information. The issue in our view is that in many cases, however much information the child is given as to long-term consequences, s/he will not be able to weigh up the implications of the treatment to a sufficient degree. There is no age appropriate way to explain to many of these children what losing their fertility or full sexual function may mean to them in later years.

As in most public concerns cases, the “floodgates” argument was made.  The Court effectively concluded that the interests of individual children ought not accede to concerns of the impacts on the justice system:

  1. The position of the defendant and the Trusts is that they consider it would be an intrusion into the child or young person’s autonomy if a decision about treatment with PBs were to be made by the court not by the patient. They are concerned about the use of NHS and court resources if these decisions have to be made by the court. We do not consider that this is the correct approach. In principle, a young person’s autonomy should be protected and supported; however, it is the role of the court to protect children, and particularly a vulnerable child’s best interests. The decisions in respect of PBs have lifelong and life-changing consequences for the children. Apart perhaps from life-saving treatment, there will be no more profound medical decisions for children than whether to start on this treatment pathway. In those circumstances we consider that it is appropriate that the court should determine whether it is in the child’s best interests to take PBs. There is a real benefit in the court, almost certainly with a child’s guardian appointed, having oversight over the decision. In any case, under the inherent jurisdiction concerning medical treatment for those under the age of 18, there is likely to be a conflict between the support of autonomy and the protective role of the court. As we have explained above, we consider this treatment to be one where the protective role of the court is appropriate.

The Court did not support the practice of NHS GIDS:

  1. … The problem is not the information given, but the ability of the children and young people, to understand and most importantly weigh up that information. The approach of the defendant appears to have been to work on the assumption that if they give enough information and discuss it sufficiently often with the children, they will be able to achieve Gillick competency. As we have explained above, we do not think this assumption is correct.

As to under 16s, the Court said:

  1. … There will be enormous difficulties in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of puberty blocking medication. It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.

Ultimately, the Court made a finding that a child under the age of 16 may only consent to the use of puberty blockers if they could demonstrate adequate competence:

  1. A child under 16 may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment. That includes an understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child. …

But the Court encouraged judicial oversight even for over 16s:

  1. In respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment. Given the long term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.

That was in light of what their Honour’s had earlier said:

  1. We do however recognise that in the light of the evidence that has emerged, and the terms of this judgment, clinicians may well consider that it is not appropriate to move to treatment, such as PBs or CSH, without the involvement of the court. We consider that it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to whether the long-term best interests of a 16 or 17 year old would be served by the clinical interventions at issue in this case.
  2. We express that view for these reasons. First, the clinical interventions involve significant, long-term and, in part, potentially irreversible long-term physical, and psychological consequences for young persons. The treatment involved is truly life changing, going as it does to the very heart of an individual’s identity. Secondly, at present, it is right to call the treatment experimental or innovative in the sense that there are currently limited studies/evidence of the efficacy or long-term effects of the treatment.

This line of reasoning conforms with the Australian approach.  If the clinicians and the parents agree that the child is Gillick competent, then there is no need for judicial intervention.  If there are any concerns at all however, whether from the clinician, parents or child, the Court’s involvement is necessary.

Parens Patriae

The idea of the parens patriae jurisdiction has developed over time. The Court of Chancery at one time were the guardians of infants whom it made its wards. The Court has assumed that the parens patriae jurisdiction extends to protecting ‘Gillick competent’ children where the child has made a decision which will seriously jeopardise the child’s health and survival (Trowse, Vol. 10, No. 2, QUT LJJ).

The Australian Courts have indicated a preparedness to do so. The guiding principle is always that the welfare of a child is paramount and that the “protection of the child should be elevated above all other interests”.

Section 67ZC of the Family Law Act provides a power to the Court in addition to the power to make a parenting order in s.65D.  A parenting order may deal with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.  Section 67ZC says the Court also has jurisdiction to make orders relating to the welfare of children.  The difference appears remarkably unremarkable.

In Re Kelvin in assessing its jurisdiction to make a declaration that a child is Gillick competent, the Full Court of the Family Court of Australia reviewed the Explanatory Memorandum to the Family Law Reform Bill 1994 (Cth) which in discussing s.67ZC of the Act, at [319] states: This jurisdiction is the parens patriae jurisdiction explained by the High Court in Re Marion.

If a special medical procedure is required but the child’s parents fail to authorise the procedure, the court may provide authorisation: Re Marion per Brennan J at [31].  Birkett v Director General of Family and Community Services involved the administration of a blood transfusion to an infant notwithstanding written notification from both parents withholding consent on religious grounds.  Without consent, or some lawful excuse, the act would constitute an actionable claim in battery.  His Honour Bryson J of the Supreme Court of New South Wales held the treatment was authorised in the circumstances of urgency in which an application to the Court by the doctors was not practical.  Bryson J considered that decisions relating to children are ordinarily left to parents, but that power is not absolute.  Parental decisions concerning the welfare of children may be overridden by orders exercised by the Court in its parens patriae jurisdiction.

So, Australian Courts assume that the decision of a ‘Gillick competent’ child can be overridden by a court of law (Trowse).[2] Trowse states an examination of the case law reveals the court has rarely done so, the basis being that even though a child is ‘Gillick competent’, they are nevertheless a child.

The paper by Trowse suggests that it is inappropriate for the Court to override the decision of a ‘Gillick competent’ child. The decision that a child is ‘Gillick competent’ means that the child has the decision making competence of an adult.  In the Gillick case itself, the child had to demonstrate sufficient maturity and intelligence to fully understand the proposed treatment.

Sometimes, the legislation excludes the capacity of a review of a child’s competence as ‘Gillick competent’.  If there is no legislation, then the assessment is that a child is ‘Gillick competent’ or not.  There is, however, the assumption that the Court can exercise the parens patriae jurisdiction as a discretionary jurisdiction regardless of the analysis of competence.

In Australia currently, the position is that there are limits to the autonomy in the decision making process of the ‘Gillick competent’ child.

In addition to considering issues of age, ‘Gillick competence’ and the parens patriae jurisdiction, it is also important, I think, to consider what we, in Australia, have determined to be the minimum age at which children can be arrested for, charged with or convicted of a crime. In Queensland, the age of criminal culpability is currently 10 years of age.

As arises in the medical environment, a very difficult area is to deal with the transition from childhood through the maturity and the recognition that at one end of the continuum there is the need to protect, and at the end of the continuum there is the need for responsibility to be assumed.

Bluntly, choices have consequences and the goal is to ensure the choices made by children are in their best interest.

Children who make bad choices.

In Queensland, section 29(1) provides that a person under 10 years is not criminally responsible for any act or omission (Criminal Code Act 1899 as amended).

A contrast to this is the reality that on 20 November 1989 the UN General Assembly adopted the convention on the rights of the child (CRC). There was an international recognition that childhood is a period of special care and assistance.

The interest of the child is the primary consideration in all decision making (Article 3) and any arrest, detention or imprisonment is only a last resort and for the shortest period of time (Article 37).

The difficulty is that an age level does not reflect emotional, mental and intellectual maturity.

In Australia, we have an over-representation of Aboriginal and Torres Strait Island offenders and these children, across all age groups, are more likely to have a Supervised Youth Justice Order than an Unsupervised Order.

This is based on the Department of Justice and Attorney-General Youth Justice Annual Summary Statistics 2011/2012 to 2015/2016.

Children have a limited ability to remove themselves from negative influences and environments. They have a limited capacity to overcome on their own socioeconomic disadvantage.

Children who have experienced poor parental supervision, harsh or punitive discipline, rejecting parental attitudes, or physical abuse are more likely to engage in criminal behaviour than other children – AEBI, M. 8L 2014 – “Problems, coping skills, psychosocial adversities and mental health problems in children and adolescents as predictors of criminal outcomes in young adulthood” – European Child and Adolescent Psychiatry Vol. 23 pp 283 to 293 at 284.

The proposition then is that consent which transforms an illegal act to a legal act is influenced by age, competence, and is supported by the parens patriae jurisdiction in the Family Court environment dealing with health issues but within the criminal justice system is, at the moment, defined by age. Those children can make bad decisions without protection from age 10.

It is interesting to note that you certainly come of age in terms of legal culpability much more readily than you come of age in having the right to make decisions about your own health.

How do you have confidence in the capacity to consent?

How is it best to analyse the complexity of a decision?  Is it analysed with reference to the consequences or the concepts involved?

There is to be rigidity of age in legal culpability. Should there be a consideration of legal age in determining other decision making rights?  The ‘Gillick competence’ test and its acceptance in the Australian jurisdiction would propose that that is not relevant.

Does a ‘Gillick competent’ child or a child of a particular age have a right to determine their own medical privacy?  In Queensland, the privacy law pertaining to disclosure of children’s health information requires medical practitioners to determine the capacity of the child on a case by case basis.  That is, there is no age restriction.

At the age of 14, a child can control what goes into, and who has access to the National Electronic My Health Record system.

A child can obtain their own Medicare card when they are 15.

 

Best practice in documenting consent

Currently, the usual practice in documenting consent is to ask a patient to sign a consent form. A parent may sign the consent form for a patient under the age of 18.

In a world that now accepts a Will can be made by leaving a message on a mobile phone and where there is an increasing recognition of the normal use of technology, is it reasonable to add a video or voice recording as a means of documenting consent?

Consent is often thought of as oral or written, with the latter tending to be the preferred form.

It is important to remember, particularly in the medico-legal realm, that in whichever form consent comes, consent is a mere concept capable of documentation.  The document is not the consent.  The patient gives the consent.  A document purporting consent has been given may not have been properly, competently, given.  The circumstances leading to the communication of consent is just as important as getting the go-ahead.  That is because consent is not really consent unless it is properly informed.

Often the requisite information given to the patient is written, and then signed by the patient, for example, medical procedure consent forms.

But when it comes to assessing the competence of a child to give consent, is written text, or memory of conversations, sufficient?  In a world in which it seems every device has a camera, why is it that consent is not recorded by audio-video?

In assessing a child’s competency, it would be farcical to presume a child the subject of competence assessment does not understand the reason for being asked specific questions directed to their capacity to consent.  Tone and body language might be just as important as the words spoken.  Why not conduct an interview with a child for the purpose of ascertaining their competence to consent recorded by video camera, questions, answers, and conversation?

It is common in parenting proceedings for parents to adduce as evidence video recordings of things children say at their home, and of the conflict between the parents which occurs at changeovers.  Usually the recordings depict conflict perpetrated solely by the other party.  Courts are often reluctant to give weight to video recordings where one party has control over the context of the recording.  In other words, videos in this context are often an unrealistic, inaccurate, or unreliable record of events.

Those issues however can be mitigated in the confines of a medical practitioner’s office.  Much like an interview conducted under s.93A of the Evidence Act 1977 (Qld), often by police.

The benefits of a video recorded interview process opposed to the written information form is perhaps best evidenced in the context of different cultures.  It is common for some cultures, or people for whom English is a second language, to acquiesce, agree or consent to things little about which they know or understand.

Cultural context

There is always a cultural context. Parents and children whose demographic are associated with habitual interaction with authority with confidence are more likely to assess consent without the distraction of power imbalance, incomplete language competence and fear of consequences.

Sometimes the relative power imbalance is between parent and child.  In circumstances where a child’s informed consent is appropriate and required, there must be measures in place to satisfactorily convey the requisite information to the child as well as place the child in an environment in which the child is comfortable expressing their perspective.  It may be an insufficient environment to simply restrict physical proximity.  No one measure will adequately account for the possible cultural complications a medical practitioner will encounter.

The medical practitioner must be able to make the information accessible to the particular patient. That is the obligation cast upon them by the court and their professional obligations.

 

[1] Paragraph 13.

[2] Trowse, P. (2010) Refusal of medical treatment – a child’s prerogative? 10(2) Queensland University of Technology Law and Justice Journal, 191-212.