As an Australian medical indemnity insurance provider, we want you to know when you need consent from a parent when treating children. It can be a bit tricky and is definitely an important legal issue to be aware of.
In Australia, generally, a minor (less than 18 years) requires consent from a parent or guardian before treatment can commence, with the exception of an emergency or if they are considered a ‘mature minor’ – someone who has the capacity to make decisions about the treatment in question. A minor is considered to be a ‘mature minor’ based on factors such as their age, understanding of and the treatment in question. In some circumstances, children aged 14 or younger can have the capacity to consent to treatment.
If a child is deemed a mature minor, they generally have the same right to confidentiality as an adult patient.
Australian Law – Medical Practice Insurance
A parent can consent to their child’s treatment, both under the common law and the Commonwealth Family Law Act 1975.
A child may be able to consent to treatment if they “achieve a sufficient understanding and intelligence to enable [them] to understand fully what is proposed” (Gillick v West Norfolk and Wisbech Area Health Authority  AC 112). This is commonly referred to as the Mature minor or Gillick competent child.
For Your Medical Indemnity Clarity
Assessing whether a child is a mature minor is a matter for professional judgment, involving consideration of:
- Their age
- Circumstances of presentation
- Medical and social history
- Their ability to understand the issues and circumstances
- Their maturity and degree of independence
- Family or other social dynamics
- The type and sensitivity of the information to be disclosed, and
- The complexity and nature of the treatment (e.g. elective, therapeutic or emergency, minor or major).
There are limits on whether a parent, guardian or mature minor can consent to ‘special medical procedures’ on a child. This involves situations where there is a significant risk of a wrong decision being made, the treatment involves grave consequences, it is irreversible and invasive, and there may be conflicting interests amongst a child, their parent and treating practitioners. In many cases involving these treatments, Court approval may be required.
The Tego Insurance team (with experts in medical indemnity insurance Australia and medical malpractice insurance) can provide tailored advice for you about getting consent for minors.
If you have any specific questions, please contact us! Tego Insurance offers medical indemnity insurance for medical practitioners underwritten by Berkshire Hathaway, a brand globally synonymous with trust and integrity. We have a profound understanding of the Australian medical profession and the ever-changing healthcare industry. It’s this expertise that allows us to provide leading cover with more choice, innovation and greater flexibility.
This publication is general in nature and is not comprehensive or constitute legal or medical advice. You should seek legal, medical or other professional advice before relying on any content, and practice proper clinical decision making with regard to individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgment or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Tego Insurance Pty Ltd is not responsible to you or anyone else for any loss suffered in connection with the use of this information.
Eric is the CEO of Tego, an insurance agency offering specialist indemnity insurance solutions for the healthcare and life sciences sectors. His qualifications include a bachelor’s degree in business and law, a master’s degree from UNSW in law and management and an MBA from the AGSM.