Consent to medical examinations and treatment
In this practice advice:
Date of advice: 5 November 2012
Advice no: 1109
Endorsed by: Assistant Director, Child Protection Policy, Practice and Planning
Standards and procedures
All decisions and actions for children must be made with the child's best interests as the paramount consideration. Whenever a child requires a medical examination, treatment, surgery or admission to hospital, parents will in most instances be informed, consulted and involved as appropriate and required by the law. For children subject to interim accommodation orders (IAO), interim protection orders, custody to Secretary orders or in safe custody, usual practice will involve seeking parental consent for examination and treatment regardless of whether the legislation requires consent or not. Legal advice should be sought when Child Protection practitioners are in doubt about the issue of consent.
Ability of young people to provide consent
Parents or guardians can make medical decisions in relation to a child, however, young people with sufficient maturity and understanding of their medical situation and the proposed treatment are legally able to consent to or refuse treatment without the consent of parents or guardians. The powers of the Secretary with respect to s. 597 Children, Youth and Families Act 2005 (CYFA) do not displace the ability of a competent child to consent to or refuse treatment. Where such instances involve young people on protection orders, and the treating doctor believes the young person's actions will place themselves or their health at risk, the medical practitioner should be requested to consult Child Protection. In turn, practitioners should seek legal advice as required.
Determining when a child is competent to consent to or refuse medical treatment is a complex issue and legal and medical advice should be sought when such decisions are being made.
Section 597(1) - Examination of a child
The Secretary may at any time order a person:
a) in the care or custody of the Secretary as the result of an IAO, custody to Secretary order, guardianship and long term guardianship to Secretary orders or a therapeutic treatment (placement) order
b) in the legal custody of the Secretary (Youth Justice clients in custody)
c) placed with a suitable person in an out of home care service, declared hospital or declared parent and baby unit under an IAO or d) in safe custody
d) in safe custody
to be examined to determine his or her medical, physical, intellectual or mental condition.
In the case of a child in safe custody or subject to an IAO and residing with a suitable person or in out of home care, Child Protection practitioners should, where possible, obtain parental consent and cooperation prior to arranging an examination.
The Team Manager should approve all medical examinations for children.
Authorisation by Child Protection for medical examinations/treatment of children
Section 597(3) - Medical treatment/admission to hospital /surgery for a child subject to a custody to Secretary order, guardianship to Secretary order and a long term guardianship to Secretary and a therapeutic treatment [placement] order.
The Minister, the Secretary or any person authorised by the Secretary (the authorisation must be current s. 597(5)), has the authority to consent to medical treatment, surgery, or the admission to hospital of a child subject to custody to Secretary, guardianship to the Secretary order, long term guardianship to Secretary order, therapeutic treatment (placement) order or in the legal custody of the Secretary (incarcerated), if a registered medical practitioner advises it is necessary. Child Protection is required to act in the best interests of the child and may authorise medical treatment even where parents object.
Senior executive officers (EO3 and above) also have the delegation to authorise this responsibility to a non-departmental officer or employee.
Where there is uncertainty regarding the authority to provide consent to treatment, Child Protection practitioners should contact the Legal Services Branch or a regional Court Officer for advice.
Authorisation by community service organisation (CSO) for medical treatment of children
Where children are resident in an out of home care placement, and are subject to a custody to Secretary order, guardianship to Secretary order or long term guardianship to Secretary order (only) the authority to consent to admission to hospital, medical or surgical treatment is authorised from the Secretary (EO3 level or above required for this delegation) to the chief executive officer or other senior officer of the CSO which provides care for the child. (Each position is authorised specifically by the Secretary or her delegate by instrument (in writing) and the authorisation must be current s. 597(5)).
See Advice Number 1471, 'Authority of CSOs to give medical consent for children in out of home care' – (see Related content).
Section 597(4) - Medical treatment/admission to hospital /surgery for a child in safe custody or subject to an IAO in out of home care or with a suitable person
The Minister, the Secretary or any person authorised by the Secretary has the authority to consent to medical treatment, surgery, or the admission to hospital of a child subject to an IAO where the child is placed in out of home care or with a suitable person or taken into safe custody and a registered medical practitioner has advised that the medical treatment, operation or admission to hospital is necessary to avoid a serious threat to the health of the child and the child's parent:
- refuses consent or
- cannot be found within a timeframe which is reasonable in the circumstances
A court order may make provision for a child to undergo medical treatment, surgery or admission to hospital for children subject to an IAO.
Consent to medical treatment in exceptional circumstances
There are some procedures that parents or guardians cannot consent to. In these cases a court order is required. Generally, these cases will involve medical procedures that have a significant and non-reversible effect for example medical sterilisation. Legal advice should be sought if it is considered that a proposed course of treatment might fall into this category.