Children under 18 years

A person has decision-making capacity if they are able to:

• understand the information relevant to the decision and the effect of the decision
• retain that information to the extent necessary to make that decision
• use or weigh that information as part of the process of making the decision
• communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

Capacity is decision-specific. A person may have capacity for some decisions but not others.

Note:

It is the responsibility of the health practitioner to determine capacity for a specific decision.

 A young person who has decision-making capacity for the decision in question may be referred to as a mature minor or Gillick competent.

‘Gillick competent’ refers to the decision of the House of Lords (UK) in Gillick v West Norfolk and Wisbech Area Health Authority which effectively found that the authority of parents to make decisions for their minor children is not absolute, but diminishes with the child’s evolving maturity.

Section 55(4) of the Medical Treatment Planning and Decisions Act 2016 states the minor’s medical treatment decision maker is:

“the child’s parent or guardian or another person with parental responsibility for the child who is reasonably available and willing and able to make the medical treatment decision”.

What is a parent, a guardian or other person with parental responsibility?

None of these terms is defined in the Medical Treatment Planning and Decisions Act. They are however defined in other legislation.

It is not OPA’s responsibility to provide advice about whether any particular individual is a medical treatment decision maker. It is a matter for the health practitioner to seek their own advice to ensure they obtain a valid consent to provide any medical treatment. However, the definitions below provide some guidance.

Parent

This is defined in the Children Youth and Families Act 2005:

parent, in relation to a child, includes:

• the father and mother of the child
• the spouse of the father or mother of the child
• the domestic partner of the father or mother of the child
• any person who has parental responsibility for the child, other than the Secretary
• a person whose name is entered as the father of the child in the register of births in the Register maintained by the Registrar of Births, Deaths and Marriages under Part 7 of the Births, Deaths and Marriages Registration Act 1996
• a person who acknowledges that he is the father of the child by an instrument of the kind described in section 8(2) of the Status of Children Act 1974
• a person in respect of whom a court has made a declaration or a finding or order that the person is the father of the child.

Guardian

The Child Employment Act 2003 defines it as:

guardian, in relation to a child, means a person on whom parental responsibility for the child has been conferred (whether alone or with another person or persons) under the Children, Youth and Families Act or any other Act or lawof a State or Territory or the Commonwealth.

The Limitation of Actions Act 1958 similarly defines it as:

guardian of a minor includes any person on whom parental responsibility for the minor is conferred under the Children, Youth and Families Act or any other Act or law.

A person with parental responsibility

This is defined in the Children Youth and Families Act as:

“in relation to a child, means all the duties, powers, responsi- bilities and authority which, by law or custom, parents have in relation to children”.

The Child Protection Division of the Department of Health and Human Services can clarify who has parental responsibility to make medical treatment decisions in relation to a child who is the subject of a Children’s Court protection order.

Unlike adults, it is not a requirement of the Act that the minor’s medical treatment decision maker is in a "close and continuing relationship".

However, whoever is the medical treatment decision maker is required to make the decision that they reasonably believe is the decision the person would have made if the person had decision-making capacity.

If the minor has decision-making capacity to do so, an option would be for them to complete an advance care directive making very clear what their preferences and values are.

The minor may also elect in their advance care directive to indicate their preference for their parent(s) not to be the decision maker and the reasons why.

While this is not determinative, it should alert health practitioners to carefully scrutinise any decisions being made.

Medical treatment decisions for minors are made according to the same criteria as a medical treatment decision maker for an adult.

If the minor's preferences and values are known, then the medical treatment decision maker should make the decision they reasonably believe the person would have made if they had decision-making capacity.

If the minor is very young, it may not be possible to ascertain their preferences and values. In this situation, the medical treatment decision maker should make a decision that promotes the person’s personal and social wellbeing.

If the minor is older, their preferences and values are more likely to be known. In this situation, the medical treatment decision maker is legally required to make the decision that they reasonably believe the minor would make if they had decision-making capacity. This is a different test to a ‘best interests’ decision.

If the young person does not have a medical treatment decision maker and the proposed treatment is significant, the health practitioner can make an application under s.63 of the Medical Treatment Planning and Decisions Act for the Public Advocate to make the medical treatment decision.

Depending on the circumstances, it may be necessary to make an application to the Children’s Court, under the Children Youth and Families Act 2005, for an order for the Secretary to the Department of Human Services to have ‘parental responsibility’ for such decisions.

A young person may have more than one possible medical treatment decision maker. The Medical Treatment Planning and Decisions Act does not provide any guidance on who takes precedence in the event that one parent consents and the other parent refuses treatment.

Parents can choose to seek independent legal advice in relation to family law proceedings.

Health practitioners can consult their own lawyer or professional indemnity insurer for advice about whether consent from any person who is deemed a medical treatment decision maker is sufficient when another person who could also be deemed a medical treatment decision maker is refusing the treatment.

An application can also be made to the Victorian Civil and Administration Tribunal (VCAT). Section 66 of the Medical Treatment Planning and Decisions Act provides that VCAT may make an order about the authority of a person to make a medical treatment decision on behalf of a person.

A registered medical practitioner may provide a blood transfusion notwithstanding that the parent or the child does not consent (Section 24 of the Human Tissue Act 1982). There is nothing in Part 4 of the Medical Treatment Planning and Decisions Act which affects the operation of this provision.

See decision: Mercy Hospitals Victoria v D1 & Anor [2018] VSC 519 in which the Supreme Court, exercising parens patriae jurisdiction, made a declaration that if medically necessary a blood transfusion could be provided to a 17 year old woman, notwithstanding that she had decision-making capacity and did not want a blood transfusion due to her religious beliefs.

If the medical treatment decision maker refuses medical treatment for the young person, and the health practitioner is concerned about this decision, then there are three options for the health practitioner to consider.

1. Children’s Court – Application for Protection Order

If a child is deemed to be in need of protection, an application may be made under the Children Youth & Families Act.

Section 162(1)(f) provides that a child is in need of protection when:

“the child’s physical development or health has been, or is likely to be, significantly harmed and the child’s parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.”

There may be other reasons for a notification to Child Protection in the context of the medical treatment decision maker’s refusal to consent to recommended treatment.

2. Supreme Court

The Supreme Court has the power to make orders that are in the best interests of individuals, such as children and adults who lack capacity, who are unable to safeguard their own welfare.

The Medical Treatment Planning and Decisions Act has not removed this option, as was confirmed in the decision of Mercy Hospitals Victoria v D1 & Anor [2018] VSC 519.

The Supreme Court can make a decision even if the young person has decision-making capacity.

3. VCAT – Medical Treatment Planning and Decisions Act

If the medical treatment decision maker refuses significant medical treatment then the health practitioner can make an application to OPA under s.62 of the Medical Treatment Planning and Decisions Act if the health practitioner reasonably believes that the preferences and values of the person are:

• not known or
• are unable to be known or inferred by that medical treatment decision maker.

If OPA is of the opinion that the decision to refuse the medical treatment is unreasonable in the circumstances, then OPA can apply to VCAT under s.67 of the Medical Treatment Planning and Decisions Act.

VCAT may then make an order affirming, varying, setting aside or substituting the decision of the medical treatment decision maker to refuse the medical treatment.

VCAT’s jurisdiction is only invoked if the child lacks decision-making capacity for the particular medical treatment decision.

Sections 62 and 67 are limited to significant medical treatment. If it is not significant, or it is not medical treatment (as defined), then there is no jurisdiction.

VCAT can only deal with the specific decision, not appoint someone else to make future medical treatment decisions.

OPA recommendation

OPA recommends that a health practitioner consider options 1 and 2 before completing an application under s.62 Medical Treatment Planning and Decisions Act.