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 (IAOs), 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).
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 them 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.
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.
The Secretary may, under s.597(1) of the CYFA, 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
- a child has been placed as a result of an IAO –
- with a suitable person(s); or
- in a care placement; 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 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.
Under s.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 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), CYFA).
The Secretary’s power under s.597(3) and (4) of the CYFA cannot be delegated to employees (CPP or VPS staff) (see also s.17(1)(b), CYFA). It is delegated to Executive Officers (EOs) under s.17(2) of the CYFA.
In practice, a divisional EO authorises the CEO of a care service to consent to medical treatment under s. 597(3) or (4) of the CYFA, as the case may be, in relation to children in the care of that 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.
Section 597(3) of the CYFA - where the Secretary has parental responsibility or legal custody of a child
The Minister, the Secretary or a CEO of a 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; or
- therapeutic treatment (placement) order
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 stability 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) of the CYFA.
In other circumstances parents should be kept informed where this is compatible with the circumstances of the case.
Section 597(4) of the CYFA - where a child is placed in care as a result of having been placed in emergency care or an IAO
The Minister, the Secretary, or a CEO of a 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 care, 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 his or her 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.
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 care at any time following a protection application. The provisions of the CYFA and delegations must be complied with.