Last updated 21 November 2016
It is necessary for all patients to give their medical practitioner valid consent before any form of medical or surgical treatment. For consent to be valid, the person giving it must have full legal capacity. Generally, a minor does not have full legal capacity.
A minor may, however, be able to enter into a legally binding contract for necessaries, including any necessary medical treatment (see the Consumers and Contracts chapter). To contract for medical treatment, the child must be old enough to be capable of forming a sound and reasoned judgement about the matter on which they are asked to give consent. The ability to form a sound and reasoned judgement depends on the maturity and intelligence of the patient, and the nature and seriousness of the treatment. This was discussed in the decision of the High Court in Department of Health and Community Services (NT) v JWB & SMB (Marion’s case) (1992) 175 CLR 218, which considered favourably the English case of Gillick (above).
Some medical practitioners take the view that a person of 16 years or older is assumed to have full capacity to consent, and therefore the consent of a parent or guardian is unnecessary. Other doctors and hospitals take a more conservative approach and assume that only a person of 18 years or over can be considered to have such capacity. Except in cases of emergency, hospital authorities generally require a parent’s or guardian’s consent to perform any operation where the patient is under 18 years.
The right to consent carries with it the right of the patient to choose their own doctor and the right to professional confidentiality regarding the patient’s consultation with that doctor. Therefore, a minor capable of consenting to treatment has a consequent right to prevent the doctor from disclosing the nature of the treatment to a parent or guardian.
If a minor considered to be capable of giving valid consent refuses to give it, the fact that the parent or guardian has consented does not prevail, and the minor could bring an action against the doctor.
If no consent is given before treatment is performed, the patient may sue the practitioner for trespass to the person. The mere fact that the trespass has occurred gives the patient a right of action. The patient does not need to suffer any damage before they can take action against the doctor.
If the Department of Communities, Child Safety and Disability Services applies to the Childrens Court for an assessment order or a child protection order for a child, the court may authorise the medical examination or treatment of the child (ss 28(1)(b), 45(1)(b), 97 Child Protection Act 1999 (Qld)).
In a medical emergency, doctors act as agents of necessity and are permitted to carry out whatever treatment is immediately required in the best interests of the patient, regardless of whether or not consent has been obtained.
An emergency occurs where a medical practitioner considers it necessary to immediately carry out a medical procedure to preserve the life or health of a patient.
Procedures requiring court consent
The High Court has determined that some medical procedures are so significant and grave in their consequences that the consent of the Family Court is required (see Marion’s case). These are called special medical procedure cases. A significant type of medical procedure that this applies to is sterilisation. The Queensland Civil and Administrative Tribunal can also in appropriate cases consent to the sterilisation of a child who has an impairment (ss 80C-80D Guardianship and Administration Act 2000 (Qld)) .
A parent may consent in writing to the removal of blood from a child, if a medical practitioner advises that the removal is not likely to be prejudicial to the health of the child and the child agrees to the removal (s 18 Transplantation and Anatomy Act 1979 (Qld)).
When a parent will not consent to a blood transfusion to a child, a medical practitioner may make the blood transfusion if it is necessary to preserve the life of the child, and two medical practitioners concur in this view. When a second practitioner is not available, the blood transfusion may be made if the medical superintendent of a base hospital consents to the transfusion (s 20 Transplantation and Anatomy Act 1979 (Qld)).
The Transplantation and Anatomy Act 1979 (Qld) provides for donations of regenerative tissue by children for transplantation in certain circumstances.
Tissue can only be donated by a child if it is transplanted into the body of the child’s brother, sister or parent (s 12B). Consent to removal of tissue from a child can be given by a parent of sound mind who acts on medical advice from a medical practitioner. Before the transplant can proceed a doctor must certify that the nature and effect of the removal has been explained to the child, and the child understands and agrees with the parent’s consent (s 12C).
If a child is too young to understand the nature and effect of the proposed operation, the tissue may only be removed if certificates from three medical practitioners are obtained. The certificates must state that:
- the child is not capable of understanding the removal
- the brother, sister or parent of the child is likely to die unless the tissue is transplanted
- the risk to the child providing the transplant is minimal (s 12D).
No laws relate specifically to abortion for minors. Abortion is illegal in Queensland unless it is done for the preservation of the mother’s life and is reasonable having regard to the patient’s state at the time and all the circumstances of the case (ss 224–226, 282 Criminal Code Act 1899 (Qld)).
No definitive judicial ruling on the meaning of ‘for the preservation of the mother’s life’ has been made.
In 1969, the Victorian Supreme Court decided that an abortion was lawful if the accused honestly believed the operation was necessary to preserve the woman from a serious danger to her life or to preserve her physical or mental health, not being merely the normal dangers associated with pregnancy and childbirth (R v Davidson  VR 667). There have been decisions in Queensland and other states that have relied on this case to acquit doctors and others charged with performing unlawful abortions. The courts have found that a person’s mental health can be affected by social and economic pressures.
In Attorney-General v T (1983) 57 ALJR 285, the High Court decided it is not possible to get a court injunction to stop a person from having an abortion.
In the Queensland Supreme Court decision of State of Queensland v B  QSC 231 orders were made declaring that:
- the termination of a minor’s pregnancy by the therapeutic administration of a drug would be reasonable in all of the circumstances to avoid danger to the minor’s mental health
- the minor be permitted to undergo, and the public hospital be permitted to perform, termination of the minor’s pregnancy by the therapeutic administration of a drug.