Forward,Gillick: Are competent children autonomous medical decision makers? New developments in Australia

Abstract

Another chapter has opened in the tortured history of the status of Gillick competence. Never before has Gillick been extended to permit a mature child to make autonomous medical decisions over and above the curial ‘parens patriae’ power. In 2013, two judicial decisions promulgated from different Australian courts are in conflict over this most fundamental of questions. This Article situates the law of the ‘parens patriae’ power in Australia and, drawing on overseas conceptualizations of analogous doctrine, explores the bases for and potential consequences of this conflict.

Vaccination of young people from 12 years of age for COVID‐19 against parents’ wishes

“…There is no minimum age for a mature minor, the critical issue is the capacity to make the specific health care decision. Assessment of decisional maturity rests with the treating clinician, with broad guidance on how capacity should be assessed 7 . In practical terms, an assessment of capacity might follow from the clinician’s past knowledge of the young person (ie, from previous encounters) or may be based on the interaction discussing SARS‐CoV‐2 infection and the benefits and risks of vaccination.…”

Towards a broader concept of wellbeing in evaluating paediatric quality of life

“…Children in NSW can consent to medical procedures from the age of 14 if they are Gillick competent and depending on the significance of the intervention. 13 An immature minor can assent; and respect for children's developing autonomy confers an ethical obligation on HCPs to provide them with age and cognition appropriate material to inform their decisions. Certain paediatric PROMs allow children to self-report at age 4.…”

Consent and refusal of treatment by older children in emergency settings

“…It seems unusual to suggest that a child who is competent to consent to treatment may not be competent to refuse it, yet this was the dilemma posed in a 2018 Victorian case – the findings of which emphasise the common law position relating to refusal of treatment by children. In Mercy Hospitals Victoria v D1 & Anor , 5 a pregnant 17 year old female was due for an induction of labour and consented to a caesarean section delivery, if circumstances necessitated. Health practitioners were concerned about the possibility of postpartum haemorrhage and sought consent to administer blood products if needed.…”

“…While the court allowed her to consent to a caesarean delivery, the patient was not able to further specify the conditions of that delivery, namely, that she wished to do so without use of blood products. Specifically, the court held that the patient did not have a ‘sufficient understanding of the consequences of her choice’ – an opinion which partly relied upon a consultant child and adolescent psychiatrist's report from the Royal Children's Hospital, Melbourne 5 …”

“…Specifically, the court held that the patient did not have a 'sufficient understanding of the consequences of her choice' an opinion which partly relied upon a consultant child and adolescent psychiatrist's report from the Royal Children's Hospital, Melbourne. 5 Australian courts are reluctant to extend refusal of treatment decisionmaking to children. It is the potential consequences of a refusal of treatment decision by a child which seem to be of particular concern to Australian courts in these cases.…”