Parental Disputes Over Medical Consent

In Australia, any person exercising parental responsibility for a child can make everyday decisions about their medical care, but parents must agree about major long-term medical decisions. This applies in all cases except when one parent (or other guardian) has sole parental responsibility for that aspect of the child’s care. Otherwise, when parents cannot agree, Australian family law provides mechanisms to resolve disputes over medical decisions. This article looks at the legal principles around the medical treatment of children, and the role of the Federal Circuit and Family Court of Australia (‘the court’) in resolving parental disputes over medical consent.

Medical consent

In Australia, it is illegal to perform a procedure, operation or treatment on a patient without their consent. If the patient lacks the necessary capacity to consent (such as if they are too young), then the decision falls to the patient’s decision-maker. Eighteen is the official age when a person is considered old enough to give informed consent for a medical procedure. However, it is up to the individual medical practitioner to form the opinion that a minor patient has sufficient understanding and maturity to give valid consent to treatment.

This concept, referred to as ‘Gillick competency’, is based on a United Kingdom House of Lords precedent which was subsequently adopted by Australian courts. This principle was born out in Re Kevin [2017], where a father applied for court permission for his child to have stage 2 medical treatment for gender dysphoria. In this case, the court found that there was no need to make a determination because all of the child’s health professionals, including the endocrinologist, psychologist and psychiatrist, had already agreed that Kelvin was ‘Gillick competent’. However, in an increasingly litigious society, doctors and treatment facilities in Australia generally adopt a conservative approach that, apart from emergency cases, all treatment of minors must be authorised by a parent or guardian.

Shared parental responsibility for medical decisions

Under Section 61C of the Family Law Act 1975, both parents have shared parental responsibility for their child unless there is a court order to the contrary. Parental responsibility relates to all powers, duties, responsibilities and authorities that a parent has in relation to children. As such, parents who share this responsibility are encouraged to consult with each other on any major long-term issues, including medical decisions, as long as it is safe for them to do so. Co-parents must make a genuine effort to reach a joint decision, maintaining at all times a focus on the best interests of the child.

Best interests of the child

When co-parents who share parental responsibility cannot agree on medical treatment, they can seek a court determination on the issue. Cases have come to court on matters as minor as orthodontic treatment and as serious as whether to discontinue a child’s life support. In any parenting dispute, the Court will decide what is in the best interests of the child with reference to the need to protect them from psychological and physical harm, including neglect, abuse and family violence. In determining what is best for each child, the Court may consider factors such as:

• the child’s specific condition
• the nature of the treatment or procedure
• the purpose of the treatment or procedure
• the available alternatives and why they are not considered more suitable options
• the physical impact of the treatment on the child and the social and psychological implications of the child receiving (or not receiving) the treatment
• the risk factor of the child receiving (or not receiving) the treatment
• the child’s own views and the views of the child’s parents or guardians to the treatment and the possible alternative treatments.

It is important to note that parental responsibility is multifaceted issue, and a parent can have sole authority over discrete aspects of the child’s care, such as medical treatment, while otherwise sharing parental responsibility. The court can make parenting orders that grant medical decision-making power to a parent or grandparent of the child, the child themselves, or another person who is concerned with the welfare, care or development of the child.

Special medical procedures

Irrespective of whether parents give their consent, there are some ‘special medical procedures’ that usually cannot be performed on a child in Australia without a court’s consent. These special medical procedures include stage two gender reassignment and sterilisation, experimental drug treatment, bone marrow harvesting, and indefinite sedation and detention. The Court’s permission is necessary for these procedures because they are designated as outside usual parental powers, as they are:

• permanent, irrevocable or life-altering
• invasive  
• non-therapeutic
• carry a significant risk of making the wrong decision about the child’s capacity to consent
• involve a determination of the best interests of a child.

For instance, in Re Marion (1991), the Court determined that it was in the best interests of a 14-year-old with severe intellectual and physical disabilities to undergo a hysterectomy as per the wishes of her parents.

When a medical practitioner’s opinion on the treatment of a child differs from the views of the parents, the medical professional can apply for a court order. In Director Clinical Service, Child & Adolescent Health Services & Kiszko & Anor [2016], a hospital applied to the Family Court of Western Australia for a court order to overcome the parents’ refusal for their child to undergo chemotherapy treatment for a brain tumour. While the court initially ordered the hospital to proceed with treatment, eventually the court disregarded the medical recommendations and agreed with the parents that the child should only receive palliative care. While many factors were considered in the case, the court relied heavily on the views of the parents in making the judgment.

For advice on parental responsibility for medical decisions or any other family law matter, please reach out to Go To Court on 1300 636 846 for assistance.