Report 119 (2008) - Young people and consent to health care - Law Reform Commission : Lawlink NSW

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Report 119 (2008) - Young people and consent to health care Updates and background for this project (Digest) How to buy a copy of this Report PDF version Table of contents Terms of reference Participants Previous publications Submissions and consultations Public forums and seminars List of recommendations 1. Reviewing the Law of Young People’s Consent to Health Care THIS REPORT THE MEANING OF CONSENT Capacity to consent is the focus of this report Voluntariness is another feature of consent Consent must also be informed Sometimes the distinction between capacity to consent and “informed consent” becomes blurred THE REASONS FOR REQUIRING CONSENT THE CURRENT LAW RELATING TO CONSENT: A PATCHWORK REFORMING THE LAW ON CONSENT Establishing a new statutory framework The interaction of the common law with the new framework The extent of consolidation of statutory provisions within the new framework Matters excluded from the new framework The location of statutory reform PRIVACY AND CONSENT TO HEALTH CARE ORDER OF DISCUSSION OF THE COMMISSION’S REFORMS 2. Guiding principles of the new legislation THE DEBATE ABOUT YOUNG PEOPLE’S CONSENT PROTECTING YOUNG PEOPLE FROM UNWISE CHOICES: THE TRADITIONAL APPROACH MOVING BEYOND A PROTECTIVE FRAMEWORK? The impact of the rise of children’s rights Do young people need protecting?: the characteristics of being young Recognising young people’s decision-making capacity in other areas of the law THE PRACTICAL BENEFITS OF INVOLVING THE YOUNG PATIENT THE ROLE AND RESPONSIBILITIES OF PARENTS AND OTHER CAREGIVERS SERVING THE YOUNG PERSON’S “BEST INTERESTS” CONCLUSIONS 3. Definitions THE SCOPE OF THE NEW LEGISLATION THE MEANING OF “PARENT” DEFINING A “YOUNG PERSON” The legislation should use the term “young person” rather than “minor” The legislation should not use the term “child” DEFINING “HEALTH PRACTITIONER” AND “HEALTH SERVICE” Looking beyond doctors and dentists? Finding a definition Adopting definitions from the Health Care Complaints Act 1993 DEFINING A “SERVICE” 4. The current test for competency AN OVERVIEW THE COMMON LAW TEST: GILLICK COMPETENCY The facts in Gillick Ambiguities in Gillick Adopting the Gillick test in Australia – Marion’s case Developments of the common law test since Gillick Conclusions on the state of the common law SECTION 49 OF THE MINORS (PROPERTY AND CONTRACTS) ACT History of section 49 PART 5 OF THE GUARDIANSHIP ACT 1987 (NSW) INTERACTION OF THE COMMON LAW AND LEGISLATION THE IMPACT OF THE PARENS PATRIAE JURISDICTION THE IMPACT OF CHILD PROTECTION LEGISLATION UNDERSTANDING AND APPLYING THE CURRENT LAW Perceptions of the current law in government directives and professional resources Empirical studies on the provision of health care to young people The Commission’s consultations with practitioners 5. Refining the competency test THE NEED FOR REFORM BUILDING ON THE COMMON LAW The Gillick test FORMULATING A LEGISLATIVE TEST Previous Australian initiatives Overseas jurisdictions THE COMMISSION’S FORMULATION Some preliminary matters Points of divergence from the common law Application of the formulation to some typically controversial cases CONSEQUENTIAL LEGISLATIVE AMENDMENTS Section 49 of the Minors (Property and Contracts) Act 1970 (NSW) Part 5 of the Guardianship Act 1987 (NSW) 6. Young people who lack capacity INTRODUCTION PARENTS AS DECISION MAKERS Who is a parent? Parental responsibility under the Family Law Act Parenting orders Should either parent be able to give consent to medical treatment? When there is a dispute between the parents Young people who are parents SUBSTITUTE DECISION MAKERS OTHER THAN PARENTS Homeless youth Young people in detention Existing models for substitute decision-makers Submissions The Commission’s view NECESSARY TREATMENT Contraceptive advice and prescription Sexually transmissible diseases (STDs) Drug and substance abuse Mental health Pregnancy-related health care Termination of pregnancy Barriers faced by young people to access health services The Commission’s approach 7. Emergencies CONSENT AND EMERGENCY HEALTH CARE The meaning of “emergency” The opinion of the medical practitioner or dentist SUSPECTED CHILD ABUSE 8. Special medical treatment COMMON LAW Certain procedures are considered “special cases” Features of a procedure that are indicative of a special case LEGISLATION Scope of legislation What treatments are covered SHOULD THERE BE A SPECIAL TREATMENTS REGIME? Common law Legislation The Commission’s view Which procedures should require authorisation? PRINCIPLES GUIDING DECISION-MAKING Common law The Guardianship Tribunal STERILISATION Common law Legislative requirements The Commission’s view EFFECT OF OUR LEGISLATION ON OTHER LEGISLATION JURISDICTION 9. Complying with the new legislation EXISTING GROUNDS OF LIABILITY Civil liability for trespass to the person Civil liability for negligence Criminal liability Disciplinary action Young people’s health care not involving physical contact Injunctive or declaratory relief THE NEW LEGISLATIVE SCHEME Breach of statutory duty? Appendices A: Submissions received B: Consultations C: Public forum Tables Table of cases Table of legislation Bibliography Index

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