GP Fact Sheet | Treating children when parents are in dispute

Family & Relationship Law eBulletin - 1 July 2014

Summary

Treating children is a rewarding experience, but difficulties may arise if the child’s parents are in dispute regarding proposed medical treatment. These disputes are common in the context of a relationship breakdown and it is important to be aware of what legal issues may arise in these circumstances.

 

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What if one parent does not consent to the proposed medical treatment?

Parenting disputes can complicate matters for doctors. For example, if a child is brought to you by the mother, do you need to ascertain the father’s views on routine medical treatment? What if the father is opposed you treating the child in general?

Under section 65DAC(4) of the Family Law Act, a doctor does not need to enquire about whether a child’s parent has consulted with the other parent. However, it may be prudent to enquire about the other parent’s views on the proposed medical treatment, particularly where the treatment involves medication or specialist referral.

Some medical decisions, such as the referral of a child to see a psychiatrist, may give rise to an application by one parent for a court order to prevent, or compel, the proposed treatment. If a court order is brought to your attention, you may wish to refrain from acting in a way that is contrary to the spirit of the order.
 

What if the child wants medical treatment but their parents do not agree?

A minor may have legal competence to consent to medical treatment, if he or she is found to have a sufficient understanding and maturity to comprehend fully what is proposed. This legal issue is determined on the basis of the “Gillick Test of Competence”.

Where parents do not agree with a child about medical treatment, it may be prudent to facilitate discussion in order to foster an understanding between all parties, and to avoid further dispute. Ultimately, the court may have jurisdiction to decide the matter.

 

What if the partner of the biological parent brings the child to see you?

In the absence of parenting orders made under the Act, a non-biological parent may not have responsibility for the child’s medical issues. You may accept advice that the biological parent has consented to the consultation for routine medical issues. For the child’s medical file, it would be worthwhile requesting a copy of any court orders giving the non-biological parent joint “parental responsibility” for the child.

For more serious medical issues, you may wish to check with the biological parent, to ensure that their consent has been given.

 

What about emergency treatment?

Emergency treatment may be given where there is a genuine and valid belief that treatment must be provided to preserve
a child’s life or prevent serious deterioration of their health.

However, the Medical Treatment Act 1998 provides some scope for parents to refuse treatment of a child if, for example, it would cause unreasonable distress.

It would therefore be necessary to balance factors such as medical necessity, risks, patient distress and harm. If the treatment is complex or carries with it a risk of harm, a second opinion may be valuable. Ultimately, the Family Court may decide the issue based on the child’s best interests.
 

What about special medical treatment?

Some paediatric medical procedures may require the approval of the Family Court, even when the child and both parents provide consent. Such procedures can include sterilisation, organ donation and termination of pregnancy.

An example is the case of “Baby Z”, where we acted on instructions from Monash Medical Centre regarding the administration of an unapproved therapeutic drug to a child who was born with molybdenum cofactor deficiency type A, which had led to a life threatening build-up of toxic sulphite in her system.

Baby Z’s parents both agreed to the proposed treatment, which had been sourced from Germany. Given the urgency of Baby Z’s medical condition, the Family Court scheduled an immediate preliminary hearing, with a final hearing on the following day. The Court held that Baby Z’s parents were legally able to consent to the treatment, but nonetheless provided judicial approval. Justice Dessau noted that the genuine medical emergency for Baby Z “brings absolute clarity to where her best interests lie”.

The parties to the case included the parents, an independent children’s lawyer, and the Office of the Public Advocate, who appeared as a respondent in support of the proposed treatment. Treatment commenced within hours, and Baby Z’s recovery was immediate. Subsequently, clinical trials have commenced for a worldwide use of the new therapy.

Ultimately, this case demonstrates that whilst the court’s approval may be needed for special medical procedures, the evidence presented by medical experts to the court will be given due consideration and weight.

 

Further information

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.

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