Spring 2010

Underage Consent: A Complex and Challenging Case

This case history is based on actual medical negligence claims or medico-legal referrals; however certain facts have been omitted or changed by the author to ensure the anonymity of the parties involved.

A 16 year old girl is seen in the Emergency Department with a provisional diagnosis of an ectopic pregnancy. She tells the JMO that several months ago the Family Planning Association had given her the oral contraceptive pill, without her parents’ knowledge. Three months previously her general practitioner prescribed some antibiotics, probably (on closer questioning) without knowing she was on the pill. A beta-HCG is positive and the pelvic ultrasound is suggestive of an ectopic pregnancy. The patient’s parents are not available.

Can she give consent to a laparotomy?

Consent for medical treatment given to children (< 18 years) is generally provided by parents. However, in an emergency situation it is not necessary to obtain the consent of a patient or their parent if it is not practical to do so and a medical practitioner can proceed to treat the patient ‘in their best interests’. Additionally, in a non emergency situation, there are circumstances in which a child can consent to their own medical treatment and the common law recognises that a child may have the capacity to consent to medical treatment on their own behalf. This common law position is based on an English House of Lords judgment known as Gillick. In this case, the issue to be determined was whether a medical practitioner could provide contraceptive advice and prescribe contraceptives to a child under the age of 16 years, without the prior knowledge or consent of the parent. The Court determined that there were circumstances in which a child could consent to their own medical treatment. In order to do so, the child must have a ‘sufficient understanding and intelligence to enable him or her to understand fully what is being proposed’, including an understanding of the nature and effects of any procedures. The level of maturity required will vary with the nature and complexity of the proposed treatment. There is also specific legislation in NSW and SA that relates to the medical treatment of children. In NSW, a medical practitioner who provides treatment with the consent of a child who is 14 years and over is granted protection against an allegation of assault and battery. In SA a medical practitioner is authorised to provide treatment to a child with the child’s consent if the medical practitioner is of the opinion that the patient is capable of understanding the nature, consequences and risks of the treatment and the treatment is in the best interests of the health and wellbeing of the child. The medical practitioner’s opinion must be supported by the written opinion of at least one other medical practitioner who examined the child before the treatment was commenced.

In summary, there are some exceptional circumstances, such as an emergency or the refusal of the child to inform his or her parents, when a medical practitioner can proceed with treatment without the consent of the child’s parents.

Post operatively the patient tells the JMO, in the ‘strictest confidence’, that her father was responsible for her pregnancy. Should the JMO:

respect her wishes to keep the information secret
alert an appropriate authority
have a quiet word with the patient’s mother
record the conversation in the medical records

The legislative requirements for mandatory reporting differ from State to State. Medical practitioners in all States and Territories, have a mandatory legal obligation to report cases of child sexual abuse. Reports should be made to the appropriate State or Territory child protection agency. This legal duty overrides the medical practitioner’s duty of confidentiality to the patient. If you are uncertain of your legal obligations in a particular situation, you should seek advice from MDA National.

[Answer: (ii), (iv)]