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

What is valid consent?

Consent is to agree to something being done, or to approve an arrangement or action. Generally, medical procedures cannot be carried out without consent from the patient or from someone with lawful authority to consent on the patient’s behalf (seeInformation and consent” in Health and the law). Otherwise, the patient may have a right to sue the doctor for unauthorised treatment.

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.

The common law rule that applies 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 depends on the maturity and intelligence of the patient and the nature and seriousness of the treatment.

If a young person is considered to be capable of giving valid consent to treatment and refuses to give it, the consent of their parent or guardian is irrelevant; the young person could bring an action against the doctor if medical treatment proceeds. However, failure to consent to medical treatment could, in some circumstances, result in the bringing of a protection application under section 162(f) of the Children, Youth and Families Act 2005 (Vic) (“CYF Act”) (seeProtection applications” in The Children’s Court).

Medical treatment and privacy

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.

When can medical treatment be carried out without consent?

Medical emergencies

In a medical emergency, a doctor is permitted to carry out whatever treatment is immediately required to preserve the life or health of a patient, regardless of whether or not consent has been obtained.

Psychiatric services

A young person may be admitted and detained in a psychiatric in-patient service as an involuntary patient (i.e. a patient admitted to a mental hospital on a doctor’s recommendation, without the patient’s consent) in the same way as an adult (ss 8–13 Mental Health Act 1986 (Vic)).

By court order

In some cases, a court order can 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.

Under the CYF Act

In certain circumstances on the advice of a legally qualified medical practitioner, the Victorian Government Minister for Health, or the Secretary of the DHHS (or any other person authorised by the secretary) may consent to a young person’s medical treatment (e.g. an operation), even if the young person’s parent objects (s 597 CYF Act).

Under the CYF Act (s 597), the Secretary of the DHHS may order that a young person in their care or custody – including young people serving a sentence in a youth residential centre or youth training centre, or who are 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.

Medical treatment for transgender and transsexual young people

For information about accessing treatment for gender dysphoria, seeSpecial medical procedures” in Same-sex and de facto couples and families.

Female genital cutting

Under the Crimes Act (Vic), it is an offence to perform female genital cutting (also called “female genital mutilation” and “female circumcision” (s 32).

It is also an offence to take a person, or arrange for a person to be taken, out of Victoria with the intention of having female genital cutting performed on them (s 33). Each of these crimes is punishable by up to 15 years imprisonment.

Contraception

Girls under 18 may be able to get contraception such as the pill, diaphragms, contraceptive implants and injections from a doctor, if the doctor thinks they are mature enough to understand what they are doing and to use the contraception properly.

There is no law that prevents a doctor from prescribing these types of contraception to girls who are under 18.

Anyone can buy condoms – there are no restrictions.

Emergency contraception (commonly called “the morning after pill”) is available over the counter at a pharmacy without a prescription.

There are no restrictions on who can buy emergency contraception.

Abortion

Summary of abortion

Abortion is the termination or end of a pregnancy. Abortion (both surgical and medical abortion) is legal in Victoria.

A woman of any age can have an abortion in Victoria (s 3 Abortion Law Reform Act 2008 (Vic) (“Abortion Act”).

More information about abortion

Abortion laws vary between Australian states and territories. In Victoria, abortion was decriminalised by the Abortion Act, which made it legal for a registered medial practitioner (i.e. a doctor) to perform an abortion on a woman who is not more than 24 weeks pregnant (s 4).

An abortion may be performed on a woman who is more than 24 weeks pregnant if two doctors agree that the abortion is appropriate in all the circumstances (i.e. medical, physical, psychological and social circumstances) (s 5).

The Abortion Act defines “woman” as “a female person of any age”; the Act does not set an age limit for when an abortion may be performed. As with all medical procedures for people under 18, girls under 18 may be able to get an abortion without their parents’ or guardian’s consent if the doctor is satisfied that the girl has the capacity to legally consent to the treatment.

This is determined by applying the competency test laid down in Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112 and confirmed by the High Court in Marion’s Case (Department of Health and Community Services (NT) v JWB (1992) 175 CLR 218). In brief, the rule is that once a minor achieves sufficient understanding and intelligence to enable full comprehension of a proposed treatment and the consequences and risks that the treatment entails, they can give valid consent. If a person under the age of 18 is unable to give consent (e.g. because of illness or intellectual disability), their parent or guardian generally has the responsibility and power to authorise medical treatment (see Marion’s Case).

Useful contacts related to abortion include Family Planning Victoria, the Fertility Control Clinic, and WIRE (seeContacts”).