In the absence of a court order, each parent has parental responsibility for their child being all duties, powers, responsibilities and authority which, by law, includes the power to authorise medical treatment for the child.
But at what age does a child become able to authorise their own medical treatment, even in the case where one or both of their parents disagree with the treatment?
In Queensland, there is no legislation which governs the age at which a child can consent on their own behalf to medical treatment. Instead, the treating doctor must assess whether the child has achieved “a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.”1 This is often referred to as “Gillick” competency. Accordingly, the necessary age will depend on the individual child, as well as the treatment proposed. The more serious the procedure, the older the child must be before being able to consent.
Once a child is considered able to consent to the medical treatment on their own behalf, their parents’ consent is not required and a parent cannot override the child’s consent if they do not agree with the treatment.
Where a child’s parents are separated, it is not uncommon for an order to be made for the parents to have equal shared parental responsibility, meaning that decisions with respect to major long-term issues, including the child’s health, must be made jointly by the child’s parents. Medical treatment for a child is a common area for dispute in the exercise of equal shared parental responsibility.
In a recent Supreme Court case in Queensland,2 the child wished to receive gender-affirming treatment for gender dysphoria. The child’s mother and the treating medical practitioners considered the treatment in the child’s best interests; however, the father opposed the treatment. The child was almost 17 years old at the time of the hearing and was determined by the Court to be able to consent to the treatment on his own behalf. On that basis, the Supreme Court agreed that it was appropriate for treatment to occur, notwithstanding that the child’s father opposed the treatment.
The issue of when a child can authorise medical treatment on their own behalf sets apart health decisions from other disputes which may arise between a child’s parents in the exercise of equal shared parental responsibility (such as what school a child attends), where a child’s views may be given weight by the Court but will not be determinative.
Accordingly, the first step in any dispute with respect to a medical decision for a child between parents who hold equal shared parental responsibility, is to consider whether the child wishes to consent to the treatment and, if so, whether the child’s treating medical practitioner is satisfied that the child can provide that consent on his or her own behalf. If the child can consent on their own behalf, the views of the child’s parents will be immaterial and an agreement between parents will not be required in order for the child to receive treatment.
If you would like to seek advice with respect to medical treatment for a child or the exercise of parental responsibility, you can contact HopgoodGanim Partner Alison Ross.
1. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 88-90; Re Kelvin [2017] FamCAFC 258, [182].
2. Re A [2022] QSC 159.