Last updated 5 September 2022
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 consent must be capable of making their own decision on what is proposed (forming a sound and reasoned judgment), which shows they understand the nature, consequences and risks of the treatment, and that it is in their best interests.
Generally, a minor does not have full legal capacity.
This was discussed in the decision of Re Kelvin  FamCAFC 258, an application by the father concerning the administration of Stage 2 medical treatment for gender dysphoria for his then 16-year-old child, where all the health professionals, psychologist, psychiatrist and endocrinologist found Kelvin to be Gillick competent. Both parents supported the child commencing Stage 2 treatment.
The full court found that the parents are not required to seek a court order before commencing Stage 2 hormone treatment, if the treating medical practitioners agree the child is Gillick competent to give consent, the child consents to the treatment and the parents do not object to the treatment.
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, whether they understand the recommended treatment, and the nature and seriousness of the treatment. This was discussed in the decision of Re Imogen (no. 6)  FamCA 761 confirming Re Kelvin  FamCACF 258 where the full court found that the full court in Re Jamie erred in its application 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 Children, Youth Justice and Multicultural Affairs 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 or gender affirmation (confirmation) operations. The Queensland Civil and Administrative Tribunal can also in appropriate cases consent to the sterilisation of a child who has an impairment (ch 5A pt 2 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
- brother, sister or parent of the child is likely to die unless the tissue is transplanted
- risk to the child providing the transplant is minimal (s 12D).
Abortion is the medical process to end pregnancy without the result of a birth.
In Queensland, there are no laws that relate specifically to ending a pregnancy without the result of a birth for minors.
A doctor needs to confirm the pregnancy and gestation. A qualified health professional may administer a substance or supply a substance, or perform a surgical operation on a person or unborn child, if they, in good faith and with reasonable care and skill, are having regard to all the circumstances of a person or unborn child, or if it is an emergency and the operation or treatment is done for the preservation of the mother’s life or the life of another unborn child (s 282 Criminal Code Act 1899 (Qld)). After 22 weeks of gestation, two doctors must approve the procedure.
No definitive judicial ruling on the meaning of ‘for the preservation of the mother’s life’ has been made.
In Attorney-General for the State of Queensland (Ex rel Kerr) 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
- 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.