[9.1.1] What do the terms ‘child’, ‘minor’ and ‘young person’ mean?

A child or minor is a person who is younger than the age of majority – the age at which citizens can exercise all the civil rights available to Australians. Currently the age of majority is 18. People under that age lack certain legal rights. Some rights are not given to children until they are 18 (for example, the right to vote or to be a company director). Other rights are available, but might be exercised on behalf of the child by someone who has parental responsibility (for example, the right to consent to medical treatment or to enter into a contract).

Some jurisdictions also recognise an intermediate category of young person, which, depending on the jurisdiction, is a person aged from 12 to 17, or 16 to 17.

Australian legislation that defines ‘young person’ is listed in table 9.1.1.

TABLE 9.1.1 Legislation defining ‘young person’

[9.2.1] Can a minor consent to medical treatment?

At common law there is a presumption that minors (people under 18) lack the competence to consent to medical treatment: see chapter 8. This is a presumption that can be rebutted, with the result that, if the minor can show they have competence, the law will treat them as having the right to consent to treatment.

A minor is considered to be competent to consent to treatment when the person ‘achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’. This test is sometimes referred to as the Gillick competence test.

There is a similar doctrine in the US and Canada that is referred to as the mature minor test. The mature minor test states that if a minor is mature enough to appreciate the consequences of a decision, and mature enough to exercise the judgment of an adult, they can make treatment decisions.

[9.2.2] Who has the responsibility to check for Gillick competence?

It is up to the medical practitioner to be satisfied that a minor has sufficient understanding and intelligence to fully understand a proposed treatment and thus validly consent to it.

While Gillick concerned teenagers, there is no age threshold for competence. In the case of some very simple non-invasive procedures, it may be argued that a relatively young child could consent. The more complicated, and invasive, the procedure, the more difficult it is for children to show competence.

[9.2.3] Is there legislation dealing with the competence of children?

Yes. Both New South Wales and South Australia have legislated for the rights of children to consent to treatment. Under the New South Wales Minors (Property and Contracts) Act 1970 children over 14 are presumed to be able consent to medical and dental treatment, and their consent is to be treated as though an adult person had consented. The effect of this provision is to drop the age of majority for the presumption of competence to 14 years. If a child is 14 or older but is not competent, the presumption is rebutted, as it would be for an incompetent adult.

The New South Wales Act also provides that a parent or guardian can consent to medical or dental treatment for a child under 16, and this consent is to be treated as though an adult had consented.

The Act does not provide for disagreement between a person aged 14, 15 or 16 and their parent or guardian. Where a person over 14 gives consent this should be sufficient, even if the parent or guardian does not consent.

This provision does not apply to the making of an advance directive or the appointment of an agent to consent to treatment.

[9.3.1] When can a parent consent to treatment?

Generally speaking, parental power to consent to treatment lasts until the age of majority – 18 years. In New South Wales and South Australia, the age of majority for consent has effectively been dropped to 14 and 16 years respectively: see [9.2.3]. However, if the child has Gillick competence to consent to treatment, parental power to consent to that treatment ceases even if the child is below the age of majority: see [9.2.3].

Conversely, in situations where the child is not Gillick competent, parental power to consent survives until the child is 18, and any consent to treatment given by a parent is an effective bar to a claim of battery or assault.

[9.3.2] How should a parent make a decision about treatment?

Parents (and others with powers to consent on behalf of children; for example, the courts) should consider the best interests of the child when deciding whether to consent to treatment. The concept of ‘best interests’ is very difficult to define, but it includes consideration of medical and social factors and how they impact on the child’s life.

It is generally accepted that decisions should be based only on consideration of the interests of the child and not on consideration of the interests of others, such as siblings, the family unit or the parents themselves.

[9.3.3] Who can give consent for a child if the parents are divorced or separated?

Parental responsibility is not affected by changes in the relationship between the parents. Each parent has responsibility for the care and welfare of their children under 18 unless a court (usually the Family Court) has made an order that one parent has responsibility to the exclusion of the other. The court can stipulate that a particular parent has specific responsibilities; for example, healthcare decisions.

In the absence of a court order, either parent may consent to medical treatment. If there is a dispute between the parents over whether or not to consent to a treatment, they should be encouraged to come to an agreement. If this is not possible, it may be appropriate for an application to be made to the court to resolve the dispute.

Unless there are indications to the contrary, medical practitioners should assume that either parent can consent, unless a court order stipulating something different is brought to their attention.