Medical treatment

 

Every patient must give a valid consent to a legal practitioner before any treatment is given to that patient. Issues of obtaining contraception or abortion in Victoria are not clearly defined and access may depend on the view point of the medical practitioner involved.

Young people and medical consent

All patients must give their medical practitioner a valid consent before any treatment is given to them (seeInformation and consent” in Health and the law). Otherwise, the patient may have a right to sue the doctor for unauthorised treatment.

For consent to be valid, the person giving it must have full legal capacity. Generally, a person under 18 does not have full legal capacity, but a young person may enter into a legally binding contract for “necessaries”, which would include any necessary medical treatment. (SeeLegal capacity” in How contract law works.)

There is no law in Victoria that fixes the age at which a young person has legal capacity to either give or withhold consent to treatment in their own right.

The common law rule that applies in such cases is that the patient must be old enough to be capable of forming a sound and reasoned judgment about the matter for which consent is required. This, of course, depends on the maturity and intelligence of the patient and the nature and seriousness of the treatment.

Under certain orders or sections of the Children, Youth and Families Act 2005 (Vic) (“CYFA”) (including those relating to a young person serving a sentence in a youth residential centre or youth training centre), the Secretary of DHHS may order that a young person in their care or custody (or in the care or custody of a suitable person or community service) be examined to determine the young person’s medical, physical, intellectual or mental condition. Arrangements may be made for the provision of any necessary medical, dental, psychiatric, psychological or pharmaceutical services to that person (s 597).

In certain circumstances on the advice of a legally qualified medical practitioner, the minister, the Secretary of DHHS or any person authorised by the secretary may consent to the medical treatment of a surgical or other operation, or the admission to hospital of a young person under certain Children’s Court orders (including the young person undergoing sentence), even if the parent objects (s 597).

A young person may be admitted and detained in a psychiatric in-patient service as an involuntary patient in the same way as an adult (ss 8–13 Mental Health Act 1986 (Vic)).

The right to consent carries with it the right to choose the doctor of the patient’s choice and the right to professional secrecy regarding the patient’s consultation with the doctor (seePrivacy and confidentiality” in Health and the law). Therefore, it appears that a young person capable of consenting to treatment has the right to prevent the doctor from disclosing the nature of the treatment to a parent or guardian. A parent who can consent can also, of course, refuse to consent to treatment.

If a young person is considered to be capable of giving a valid consent to treatment and refuses to give it, the consent of the parent or guardian is irrelevant and the young person could bring an action against the doctor should treatment be continued. However, failure to consent to medical treatment could, in some circumstances, result in the bringing of a protection application under section 162(f) of CYFA (seeProtection applications” in The Children’s Court).

A court could probably, in some cases, over-ride the wishes of a young person who is of sufficient maturity to make an informed decision but refuses to consent to medical treatment. In the English case of Re W (a minor) (medical treatment) [1992] 4 All ER 627, the Court of Appeal ordered that a 16-year-old suffering from anorexia nervosa receive hospital treatment, against her wishes, as continuing refusal of treatment would in all probability lead to death or severe permanent injury.

In a medical emergency the doctor acts as an agent of necessity and is permitted to carry out whatever treatment is immediately required in the best interests of the patient, regardless of whether or not a consent has been obtained. Such an emergency occurs where a qualified medical practitioner considers it necessary to immediately carry out a medical procedure to preserve the life or health of a patient.

Contraception

Many doctors will refuse to either give contraceptive advice or prescribe oral contraceptives to unmarried young women without parental consent, although most Family Planning Associations and many public hospitals will do so. The law is not clear in this area.

A court decision in England confirms that doctors can in some circumstances properly prescribe contraceptives to girls under 18. In Gillick v West Norfolk & Wisbech Area Health Authority & the Department of Health & Social Security [1986] 1 AC 112, a majority of the House of Lords decided that a doctor who, in exceptional circumstances, gives contraceptive advice and treatment to a girl below the age of 16 years, without her parents’ knowledge or consent, will not necessarily infringe parental rights or incur criminal liability or otherwise act in a way that is contrary to public policy.

In Victoria all contraceptives (and these are widely defined) must be registered prior to marketing; and legislation regulates their sale, exhibition and advertising.

Oral contraceptives (because of their chemical composition) are in most cases available only on prescription and therefore may only be supplied by a pharmacist. There is no law that prevents a doctor from prescribing oral contraceptives to a young person.

Young people are entitled to purchase contraceptive devices provided the devices are registered.

Abortion

The Abortion Law Reform Act 2008 (Vic) decriminalised abortion, making it legal for a doctor to perform an abortion on a woman who is not more than 24 weeks pregnant. An abortion may be performed on a woman who is more than 24 weeks pregnant if a doctor believes that it is appropriate in all the circumstances and has consulted at least one other doctor who shares that view.

The Act is silent on the age at which an abortion may be performed. In the past it has been common practice for girls under 16 to be required to have either parental consent or a psychiatric referral. Many doctors would refuse to perform an abortion on a girl under 18 without parental consent.

Useful addresses

Family Planning Victoria – Action Centre (for people under 25)

Level 1, 94 Elizabeth Street, Melbourne Vic 3000

Tel: 9660 4700; 1800 013 952

Email: clinic@fpv.org.au

Web: www.fpv.org.au

Family Planning Victoria also have a clinic in Box Hill, for all ages.

Fertility Control Clinic

118 Wellington Parade, East Melbourne Vic 3002

Tel: 9419 2922

Email: clinic@fcc.com.au

Web: www.fcc.com.au

There is also a clinic in Albury.

WIRE Women’s Information and Referral Exchange

372 Spencer Street, West Melbourne Vic 3003

Tel (admin): 9348 9416

Tel (support line): 1300 130 134

Email: support@wire.org.au

Web: www.wire.org.au