Young people and medical consent
What is Legally binding or effective. To agree to something being done, to approve an action or arrangement. See also informed 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 (see ‘Information and consent’ in Chapter 9.1: Health and the law). Otherwise, the patient may have a right to To take legal action in a civil case. the doctor for unauthorised treatment.
There is no law in Victoria that fixes the age at which a young person has legal The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. to either give or withhold consent to treatment. The (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. rule that applies is that the patient must be capable of forming a sound and reasoned judgment about the matter for which consent is required. This depends on the patient’s maturity and intelligence 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 Someone who is legally responsible for taking care of another person or their property. 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 An application to a court by the Department of Human Services (Victoria) for an authorisation to protect a child from harm. If the application is successful the court may authorise the removal of a child from their family, if the child is in danger of harm because the family or other carers are unable or unwilling to protect them. under section 162(f) of the Children, Youth and Families A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 2005 (Vic) (‘CYF Act’) (see ‘Protection applications’ in Chapter 1.4: The Children’s An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate.).
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 (see ‘Privacy and confidentiality’ in Chapter 9.1: 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?
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.
A young person may be admitted and detained in a psychiatric in-patient Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence. as an A patient admitted to a mental hospital on a doctor’s recommendation, without the patient’s consent. (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 28–30 Mental Health Act 2014 (Vic)).
By court order
In some cases, a court order can override the wishes of a young person who is of sufficient maturity to make an informed decision but refuses to consent to medical treatment. In Re W (a In Victoria, a child or young person under 18. See also infant.) (medical treatment)  4 All ER 627, the English Court of The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. ordered that a 16-year-old girl with anorexia nervosa receive hospital treatment against her wishes, as she was likely to die or be severely permanently injured without treatment.
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 of the DHHS) 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 – including young people serving a sentence in a youth residential centre or youth training centre, or who are in the care 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, see ‘Special medical procedures’ in Chapter 4.3.
Female genital cutting
Under the Crimes Act (Vic), it is an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). 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.
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. Also, 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.
Summary of abortion
Abortion is the The end of something. Contracts terminate when the parties have done what they agreed. A contract can also be terminated without being completed, for example if one party breaks the contract, or it is impossible to carry out. 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 medical 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  AC 112 and confirmed by the High Court in Marion’s Case (Department of Health & 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 (see ‘Contacts’ at the end of this chapter).