Minors’ rights: a question of competence

11 minute read

When in doubt, seek advice. The legal issues around minors and consent for medical treatment can be complex

In 2013, a 17-year-old Jehovah’s Witness boy from New South Wales made headlines when he lost his court appeal to refuse a life-saving blood transfusion.

The religious teenager, who was being treated for Hodgkin’s lymphoma at Sydney Children’s Hospital, threatened to rip the IV needle from his arm, claiming it would be “akin to rape” if he were given a blood transfusion while under anaesthetic.

His doctor, Professor Glenn Marshall, said the boy (who can’t be named for legal reasons) would have an 80% chance of dying from anaemia without the transfusion.

Jehovah’s Witnesses refuse to accept blood transfusions because they say blood represents life, and only God is the giver of life.

The court ordered the hospital be allowed to carry out the treatment and the boy immediately appealed against the decision.

While noting he was a highly intelligent, “mature minor” and devoted to his faith, the judge also found the boy had been “cocooned in that faith” for his entire life.

“The sanctity of life, in the end, is a more powerful reason for me to make the orders than is respect for the dignity of the individual,” NSW Supreme Court Justice Ian Gzell said in his summation.

Six months later, the Court of Appeal concurred with Justice Gzell and overrode the boy’s wishes.

High profile cases such as this one are the stuff of novels and films. In fact, celebrated British author Ian McEwen wrote a best seller in 2014 called The Children’s Act based on a similar scenario.

Of course, most GPs don’t find themselves starring in court room dramas such as this one, according to Dr Sara Bird, a manager and adviser at medical indemnity insurers MDA National Insurance.

“In my experience as a medico-legal adviser, the most frequent call from GPs is about whether a child or young person can consent to their medical treatment on their own, especially in seeking contraception,” Dr Bird says.

And day to day, doctors deal with requests from unaccompanied minors for more prosaic matters, such as prescribing contraception or acne medication or treating sexually transmitted infections.

In most cases the young patients do not want parents to know about their visit to the doctor, let alone their malady.

In Australia, a 15-year-old can obtain his or her own Medicare card and make a doctor’s appointment without their parents attending. Which is why it’s important GPs understand the legal terms “Gillick’s competence” and “Fraser’s guidelines” to protect the interests of young people, and themselves.

In such cases, doctors and lawyers are called upon to assess whether the adolescent is indeed a “mature minor”, or in legal parlance “Gillick competent”. In other words, is he or she able to truly comprehend the ramifications of requesting or refusing treatment.

The common-law position on a minor’s rights to seek and consent to treatment originates from the English House of Lords’ decision in the case Gillick versus West Norfolk and Wisbech Area Health Authority (1986).

This became endorsed in Australian common law in 1992 after Marion’s Case, in which the High Court ruled that a married couple from the Northern Territory did not have the authority to have their physically and mentally disabled 14-year old daughter sterilised.

In Marion’s Case, the High Court ruled that while parents might consent to medical treatment for their children, the authority did not extend to treatment not in the child’s best interests. The court held that if medical treatment had sterilisation as its principal objective, parents did not have the authority to consent on behalf of their child.

The Gillick case

Mrs Virginia Gillick was a devout Catholic and mother of five daughters. (She later went on to have another five children.) She was deeply offended by a health department circular advising doctors they could prescribe contraception to minors at their discretion without the permission of the teens’ parents.

Mrs Gillick wrote to the Health Authority seeking assurance that no such advice would be given to her children without her involvement. The Health Authority refused to give Mrs Gillick such an assurance.

Mrs Gillick then took the case to court, arguing that a doctor prescribing the pill to a teenager, without her parents’ approval, would be encouraging a minor to engage in sexual activity. She went further, claiming such a doctor would be guilty of statutory rape because the girl was under 16. The courts threw out this argument almost immediately.

However, Mrs Gillick’s second argument held water. She maintained the policy was inconsistent with the rights of parents who had complete authority over their children at that age. The court pursued this bone of contention; it was also hotly debated around dinner tables, water coolers and on talkback radio around the country.

While such a campaign might not raise too many eyebrows today, it was highly contentious in the 1980s, when the increasing number of teen pregnancies was ringing alarm bells among the medical fraternity and the wider community.

Meanwhile, more than half of the House of Lords supported Mrs Gillick, (perhaps they had teenage daughters too) but in the final appeal by the Health Authority, the majority of judges ultimately rejected Mrs Gillick’s claim.

Assessing whether a minor is mature is not always a black-and-white case.

In his judgment of the Gillick case, Lord Fraser laid out the guidelines, which require the medical professional to be satisfied that:

• the young person understands the professional’s advice;

• the young person cannot be persuaded to inform their parents;

• the young person is likely to begin, or to continue having sexual intercourse with or without contraceptive treatment;

• unless the young person receives contraceptive treatment, their physical and/or mental health are likely to suffer;

• the young person’s best interests require them to receive contraceptive advice or treatment with or without parental consent.

According to the common law there is no lower age limit to a child giving consent without their parents. But this, of course, depends on the situation and treatment.

Dr Bird says a 10-year-old may consent to having a splinter removed if mum and dad aren’t around, or con sent to giving his or her medical history after a fall in the playground. But this is a very different situation from a 14-year old girl asking a GP for Implanon.

Fraser’s guidelines originally referred to a request for contraception, but have since been applied more broadly to assess whether a minor is mature enough to request a range of treatments without their parents’ permission.

There are vast differences in the maturity of teenagers. While some are shy and a little naïve, many more appear very confident
There are vast differences in the maturity of teenagers. While some are shy and a little naïve, many more appear very confident

Levels of complexity

For GPs in NSW and South Australia there is another level of complexity, which keeps Dr Bird busy with doctors’ enquiries.

The NSW Minors and Property Act and the SA Consent to Medical Treatment and Palliative Care Act 1995 overlap, and in some cases override the common law.

In South Australia the law states that children who are 16 and over have the same rights as an adult when it comes to consenting to their medical treatment. When the child is under 16 they can request medical procedures if the treatment is in their best interests and he or she is capable of understanding the nature, consequences and risks involved. Furthermore at least two doctors must agree in writing that the young person is a “mature minor”.

GP Dr Gillian Deakin, an assessor with the RACGP, believes this is a good practice regardless of the law.  “I always encourage young doctors to seek the advice of an old hand,” she says.

In NSW, the Minors (Property and Contracts) Act 1970 states that a medical practitioner who provides treatment with the consent of a child 14 years or over will have a defence to any action for assault or battery.

This Act does not assist a medical practitioner in a situation where there is a conflict between a child and their parent and a parent can still potentially override a child’s decision.

Dr Deakin says encouraging children to tell their parents what’s going on should always be a GP’s priority. However, if they insist on privacy, then the doctor needs to be sure they understand all the ramifications.

“There are vast differences in the maturity of teenagers,” Dr Deakin says.

When an adolescent comes in on their own it’s a good opportunity for them to practice independent decision making in a safe environment. While some are shy and a little naïve, many more appear confident, if not cocky.

Dr Deakin blames online pornography for the early sexualisation of modern teenagers.

“Once they start having sex, the genie is out of the bag. It’s no use telling them to stop; you have to advise them on contraception and STIs,” she says.  Dr Deakin recalls a 15-year-old girl who recently presented after her first sexual experience. She was worried because they hadn’t used a condom. A swab revealed the girl had contracted chlamydia. Dr Deakin gave her scripts for antibiotics and the pill.

“She walked out of here with the script in her hand and didn’t bother hiding it from her mother who was sitting in the waiting room. This girl understood her rights to medical treatment and confidentiality.”

In sharp contrast, Dr Deakin’s work with Aboriginal Health Services in the Northern Territory exposes a real lack of knowledge about health and reproduction among indigenous teenagers. “Some of the girls appear covered in shame. They are so embarrassed and know little about pregnancies or STIs. They barely have the words to ask the right questions.”

Dr Deakin says assessing those Aboriginal girls for Gillick’s competence requires a different and more sensitive approach, in tandem with assistance from indigenous health workers.

At the NSW Family Planning Clinic in Ashfield in Sydney, prescribing the pill to minors is commonplace. However, senior medical officer Dr Mary Stewart is mindful that patient confidentiality can only be ensured within the limits of child safety and mandatory-reporting obligations.  Dr Stewart stresses the importance of building trust and rapport with the young person, while advising them about the options of contraception, and at the same time assessing the safety of the child’s situation.

“If you are worried they aren’t attending school, or are neglected or in an abusive relationship then it’s mandatory to report the case to the child protection agencies,” she says.

Dr Stewart recommends healthcare practitioners who deal with young people read the “Keep them Safe” NSW Health Guidelines and the NSW Family Planning Hand Book.

Sydney-based Dr Michela Sorensen says in her experience, most girls who present with their mother asking for advice on treating acne or heavy periods, in most of those cases the girls are sexually active and want to go on the pill.

If I have a particularly curly question I can pick up the phone to my medical indemnity insurer and get an answer almost straight away.

“It’s not until I ask mum to step outside the room for a few minutes so we can talk privately that I find out what’s really going on,” Dr Sorensen says. Of course, she always encourages them to talk to their mothers, but says doctors can’t be too dictatorial.

“Assessing whether a minor is mature is not always a black-and-white case. I need to be confident they understand all the information and can process it to guide their own judgment. I will give them my spiel and then ask them to repeat back to me in their own words what they understood.”

Dr Sorensen often relies on her gut instinct as to whether the teen is competent, but always errs on the side of caution.

“If I’m not convinced of their maturity I won’t give them the pill straight away. Instead I will give them all the information and ask them to come back in 24 hours. If they follow up it’s usually a good indicator they are mature enough and know what’s going on,” Dr Sorensen says.

Dr Deakin reminds GPs that there is excellent medical legal advice on hand.

“If I have a particularly curly question I can pick up the phone to my medical indemnity insurer and get an answer almost straight away from competent senior clinical doctors,” Dr Deakin says.  “In the end, you don’t have to sit there chewing your fingernails, trying to make a decision. There is always good advice and support available and a process to follow.”


 Adolescent Health: Enhancing the skills of General Practitioners in caring for young people from culturally diverse backgrounds, GP Resource Kit 2nd Edition. http:// www.healthinfonet.ecu.edu.au

The Shop Front Youth Legal Service, Legal Info for Youth Workers http://www.theshopfront.org

NSW Mandatory Reporter Guide http://www.keepthemsafe.nsw.gov.au

NSW Family Referral Services http://www.familyreferralservice.com.au/ 

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