Under the Consent to Medical Treatment and Palliative Care Act 1995 (SA) [s 12(a)] a parent or guardian of a child under 16 years of age may consent to medical treatment for the child.
However, if the consent of a parent or guardian is not available or is withheld, under s 12(b) the doctor can still proceed if:
- the child consents, and
- the doctor is of the opinion that the child is capable of understanding, and
- treatment is in the child's best interests, and
- a written opinion of another doctor who has personally examined the child supports the treatment.
The Supreme Court has parens patriae jurisdiction in non-emergency cases where:
- the parents and the child do not agree about medical treatment, or
- a doctor is concerned about the treatment decision made by the parents when the child is not capable of understanding
- a doctor is concerned about the decision made by the parents and the child
- a doctor is concerned about the decision of the child
This is is an inherent jurisdiction of the Court to protect the person and property of those in the state of South Australia who are unable to look after themselves. The Court may override the medical treatment decisions of both the parents and the child. This power has been used to authorise blood transfusions to a child against the wishes of the child's parents and of the child themselves [see Children, Youth & Women’s Health Services Inc v YJL, MHL and TL (by his next friend) (2010) 107 SASR 343;  SASC 175; Women's and Children's Health Network Inc v JC, JC, and KC (by her litigation guardian)  SASC 104]. Any decision the Court makes must put the interests of the child first.
The Family Court can also withhold or grant consent to medical treatment for a child; family law proceedings concerning the child would have to be commenced, see CHILDREN AND YOUNG PEOPLE. Any determination of the Family Court will override the Consent to Medical Treatment and Palliative Care Act 1995 (SA). The Family Court's powers are very important in cases where the parents and the child do not agree about medical treatment or a doctor is concerned about the decision made by the parents and/or the child concerning treatment, as, for example, in Marion's case (1992) 175 CLR 218;  HCA 15. See, however theRe Kelvin case [Re: Kelvin (2017) FamCAFC 258] which allows a child to undertake stage two medical procedures and treatment in relation gender dysphoria without approval of the Family Court, if the parents of the child and relevant medical practitioners agree with the treatment proposed.
It is important to understand that the common law test for effective consent to medical or dental treatment involves a two step process:
- did the patient have the capacity to consent, that is, was the patient mature enough to understand the general nature of the proposed treatment, the risks involved and the possible effects the treatment may have on his or her life and relationships with other people?
- if the patient did have legal capacity, did, in all the circumstances, he or she validly consent? This depends on whether the patient has received enough information to have a reasonable understanding of what the proposed treatment involved, what risks (other than very rare or insignificant risks) could occur if the treatment failed, and whether there have been any threats or undue pressure.
The Consent to Medical Treatment and Palliative Care Act 1995 (SA) only gives a child, or his or her parents or guardian, the legal capacity to consent to treatment. Except in emergencies when consent is not required, whether the second step has occurred is a question of fact for a court to decide.
Blood and tissue donations
A child cannot give blood without parental consent, but only for treatment purposes under the following circumstances:
- where a medical practitioner advises that the taking of blood will not be harmful to the health of the child; and
- the child agrees to the taking of blood.
See Transplantation and Anatomy Act 1963 (SA) s 19.
In limited circumstances, a child can donate body tissue (e.g. bone marrow). Consent of the child and their parents is required and this consent must be approved by a Committee made up of a lawyer, a doctor and a social worker or psychologist. Approval from each member of the Committee is required (Transplantation and Anatomy Act 1963 (SA) s 13).
Consent can be withdrawn at any time - whether by the parent or child (Transplantation and Anatomy Act 1963 (SA) s 14).
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