Consent for medical examination and treatment - advice
This advice provides information regarding who is authorised to consent to certain types of medical examinations and medical treatment for a child depending on their legal status.
Document ID number 2423, version 2, 1 March 2016.
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), family preservation orders, family reunification orders, therapeutic treatment (placement) orders or in emergency care, usual practice will involve seeking parental consent for examination and treatment regardless of whether the legislation requires parental consent or not. Legal advice should be sought when child protection practitioners are in doubt about the issue of consent.
This advice does not apply to medical assessments under a temporary assessment order (TAO). See advice Temporary assessment orders (TAO).
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. The powers of the Secretary provided for in s. 597 of the CYFA do not displace the ability of a competent child to consent to or refuse treatment. Where such instances involve a child or young person subject to an order of the Children’s Court or in care for their protection, and the treating doctor believes the child’s or young person's actions will place him/her or their health at risk, the medical practitioner should be requested to consult child protection. Child protection 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 is an assessment for a medical practitioner. Legal and medical advice should be sought when such decisions are being made.
Seeking legal advice
Where there is uncertainty regarding the authority to provide consent to treatment, child protection practitioners should contact Legal Services or the Child Protection Litigation Office for advice.
Arranging an examination
The Secretary may, under s. 597(1), at any time order that a child or young person be examined to determine their medical, physical, intellectual or mental condition where:
- the Secretary has parental responsibility of the child as the result of—
- a family reunification order; or
- a care by secretary order; or
- a long term care order; or
- a therapeutic treatment (placement) order; or
- the Secretary has the legal custody of the child provided by s. 483 (youth justice custody); or
- a child has been placed as a result of an IAO –
- with a suitable person(s); or
- in an out-of-home care service; or
- in a secure welfare service; or
- in a declared hospital; or
- with a disability service provider; or
- in a declared parent and baby unit; or
- the child has been placed in emergency care.
In the case of a child who has been placed in emergency care or is subject to an IAO and residing 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 examinations of children unless the examination is consistent with the carer’s authorisation.
Authorisation to consent under section 597(3) and (4)
Under section 597(3) and (4) of the CYFA, the Secretary may authorise any person, other than a departmental officer or employee, to consent to medical care for a child in out-of-home care even if the child’s parent objects.
The authorisation must be made by instrument (a formal signed document) and may be made to the holder of an office or position or to any person acting in or performing the duties of an office or position (s. 597(5)).
The Secretary’s power under s. 597(3) and (4) cannot be delegated to employees (CPP or VPS staff) (see also s.17(1)(b)). It is delegated to executive officers (EOs) under s.17(2).
In practice, a divisional EO authorises the CEO of an out-of-home care service to consent to medical treatment under s. 597(3) or (4), as the case may be, in relation to children in the care of that home care service. Each position is authorised specifically by an EO by instrument, and the authorisation must be current. See Authorisation for CSOs to provide medical consent.
Consent for treatment, surgery, or admission to hospital
Section 597(3) - where the Secretary has parental responsibility or legal custody of a child
The Minister, the Secretary or a CEO of an out-of-home care service (provided the authorisation is current), on the advice of a registered medical practitioner that medical treatment or a surgical or other operation or the admission to hospital is necessary in the case of a child subject to a:
- family reunification order;
- care by Secretary order;
- long-term care order;
- therapeutic treatment (placement) order; or
- in the legal custody of the Secretary (under s.483),
may consent to the medical treatment or the surgical or other operation or the admission to hospital even if the child’s parent objects.
Where the permanency objective for the child is family reunification, the parents should be engaged to the fullest extent possible in making the decision. However, even if the parent disagrees with the decision, the Secretary is expressly authorised to make the decision under s. 597(3).
In other circumstances parents should be kept informed where this is compatible with the circumstances of the case.
Section 597(4) - where a child is placed in out-of-home care as a result of having been placed in emergency care or an IAO
The Minister, the Secretary, or a CEO of an out of home care service (provided the authorisation is current), may consent to medical treatment or a surgical or other operation or the admission to hospital in the case of a child who is placed in an out of home care service, declared hospital or declared parent and baby unit or with a suitable person(s) as a result of having been taken into emergency care, or an IAO, 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 to give their consent; or
- cannot be found within a time which is reasonable in the circumstances.
Where a child is in parental care
A court order may make provision for a child to undergo medical treatment, surgery or admission to hospital. Legal advice should be sought in these cases.
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.
Considerations for good practice
Section 597 of the CYFA is the provision relevant to arranging examinations, and obtaining consent for medical treatment, a surgical procedure or admission to hospital for a child in out of home care at any time following a protection application. The provisions of the CYFA and delegations must be complied with.