Webinar post-work

Consent to medical treatment when children are involved.

At the heart of the doctrine of informed consent, lies the principle of patient autonomy, whereby all individuals have the right to decide what is done and not done to their bodies. Healthcare providers must uphold the autonomous choices made by adult patients, who have capacity at law to make those decisions. Except in limited circumstances, clinical interventions must not be performed in the absence of a patient’s legally valid informed consent. Treatment provided without consent may amount to assault or battery, while treatment provided without fully informed consent may amount to a claim in negligence, especially if there is an adverse outcome associated with the treatment¹.

When informed consent to medical intervention involves children (i.e., individuals under the age of 18), other critical considerations come into play. 

Where a child under the age of 18 requires a clinical intervention, attention needs to be given to who may lawfully consent to the treatment. The consent may be provided by:

• The child - if they are Gillick competent.
• The child’s parent or guardian – if the child is not Gillick competent.
• A court of law – in the case of certain special procedures.

As with adults, it is generally unlawful to provide clinical treatment to a child without the consent of the child, or the consent of a person with the relevant authority to provide that consent on behalf of the child. To do so exposes the health care practitioner to a civil claim and potential criminal charges. However, there exceptions:

• At common law, a healthcare provider may treat a child in an emergency where the child cannot consent, and the child’s parent is not available to provide consent and may also do so if the child has been abandoned and the child is not in the care of a person who is acting in the place of a parent (in loco parentis).
• Medical treatment may be authorised by legislation in cases of emergency. For example, emergency medical treatment may be administered without a patient’s consent if necessary as a matter of urgency to save the person’s life, prevent serious damage to the person’s health or to prevent the person from suffering or continuing to suffer significant pain or distress (Medical Treatment Planning and Decisions Act 2016 (Vic), s 53). 

Age majority and informed consent

At law, issues may arise as to whether and when²: 

• A child may consent to his or her own clinical treatment. 
• Parental consent is required and what happens if parents disagree.
• Court authority is required.

Generally speaking, a child’s parents will possess the right to consent to their child’s clinical treatment up until the time that the child possesses “a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. This point at which a child can consent to his or her own medical treatment is referred to as “Gillick competence” and is based on an English decision, the case of Gillick v West Norfolk & Wisbech Area Health Authority, which received approval in Australia in the High Court case of Secretary Department of Health & Community Services (NT) v JWB & SMB (Marion’s case) (1992) 175 CLR.

Can very young children be deemed to be Gillick competent?

There are seldom issues regarding the assessment of Gillick competence for very young children. It can only come to be even considered in situations where the child’s understanding and intelligence raises the question of whether he or she may have a sufficient understanding and intelligence to enable them to understand what is proposed. 

Where a child is an infant or so young as to clearly not be Gillick competent, then the parents are empowered to provide consent for the child’s clinical intervention. 

When will a child be Gillick competent?

A parent’s right to consent to treatment for the child ends if and when the child has the capacity to consent to the treatment. A child will have that capacity when he or she has “a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.

When can a child give valid informed consent independently of their parents or guardians?

The test is whether a child has achieved sufficient understanding and maturity to enable him/her to understand fully what is proposed and that the treatment it is in the best interest of the child. There is limited guidance on how a clinical practitioner should assess the competence of older children to give informed consent. Broadly speaking, the more complex or risky the procedure, the greater the level of understanding and maturity required. A child’s age and insights into the nature of the treatment and its possible side effects are relevant. 

There also jurisdictionally relevant considerations.  In NSW, for example, children between 14 and 16 years of age have a legal right to consent to their own treatment².

Is it sufficient to have the consent of only one parent?

Unless a clinician is specifically aware that the parents have opposing views about treatment, it is generally sufficient for one of the child’s parents to provide consent. The situation can be more complex where the parents have separated and there is a shared parenting order in operation which requires parents to cooperate on major decisions regarding their child. However, even in these cases a doctor may still rely on the consent of one of the child’s parents.

What should a medical practitioner do when asked to release a child’s health records and divorced parents disagree?

Either parent has the right to access to the child’s medical records, unless the child is Gillick competent and refuses access to their record. In addition, if there is a parenting order or Family Court Order that prevents one parent from having access to the child or removes their parental rights and responsibilities, then that parent is not entitled to a copy of the child’s record. However, this can be a complex situation and we recommend that you contact MIPS if these circumstances arise. This is because parents may be unwilling to disclose relevant information or you may require assistance with the interpretation of any orders and their relevance to the issue about access to records.

There are some other points to consider. First, you should confirm the identity of the person requesting the record, to ensure that they are in fact the child’s parent. Second, it is often helpful to ask the parent requesting access to the record to evidence their request in writing. 

What should a medical practitioner do when one parent requests they be called every time the child is brought into the practice by the other parent, but the latter parent doesn’t consent. 

As immediately above, either parent has a right to access information about the child unless the exceptions above apply. Again, you check the identity of the parent requesting the information if you have not previously met them or checked their identity.

Does parental consent apply to all types of clinical intervention?

Parental power to consent to a child’s medical treatment does not apply to every type of treatment or procedure. For example, parents are not able to give lawful consent to treatment that is deemed illegal (eg. female genital mutilation). In addition, there are some types of major complex medical treatment where parental consent will be insufficient and court authority is required (eg. sterilisation of a child with an intellectual disability, gender-affirming surgery, or termination of a pregnancy). 

What are the limits of parental power to consent to a child’s clinical treatment?

The High Court in Marion’s case clearly stated that there are “controls” or limits on parental power to consent at common law. Parents may only exercise their authority to consent to, or refuse clinical treatment for their child if it is in their child’s best interests.

Where does a general practitioner stand with an eleven-year-old girl brought in by a carer who is not a legal guardian, where there is a suspicion that the child has been sexually active several months ago with boyfriend of the same age. The practitioner has been told that the situation has been reported. Is it necessary to report it again? Can the carer who presents at the consultation, give consent to clinical intervention of any kind?

Again, this is a complex situation, and you really should be ringing MIPS for advice here. First, if the carer is not the legal guardian, then you may be unable to physically examine the child because the carer is not legally authorised to make decisions about the child. Legal guardians cannot delegate their duties to a carer. However, if you believe that might be an emergency situation because of the risk issues raised, then you may be able to obtain a limited history from the child in order to ascertain the level of risk. Based on your assessment, you may need to assess whether you have an obligation to report suspected child abuse. The issue of when to report child abuse is also complex and it is recommended that you contact MIPS to discuss your obligations and responsibilities in given circumstances. 

Self-reflection questionnaire

The following is a useful resource: https://aifs.gov.au/sites/default/files/publication-documents/2006_mandatory_reporting_of_child_abuse_and_neglect_0.pdf

This reading material is for educational purposes only. MIPS would like to acknowledge the significant contribution of Barry Nilsson Lawyers in developing this content.

¹Medical Law in Queensland 2021 Course Notes. Barry Nilsson Lawyers.

²ibid

³Children and Young Persons (Care and Protection) Act 1998 - Sect 174.

Voluntary Assisted Dying (VAD) refers to the assistance provided by a healthcare practitioner to a person to end their life voluntarily. The word 'voluntary' highlights that this practice is the person's own choice and that they must have decision-making capacity. 

Until recently, it was unlawful to assist another person to end their life. Today, voluntary assisted dying legislation has been passed in all Australian states (but not yet in the territories) that allow healthcare practitioners to assist a terminally ill person in ending their life in limited circumstances and subject to completing a prescribed process. 

Victoria, Western Australia, South Australia, Tasmania, Queensland and New South Wales have passed VAD laws. In all states except NSW, these VAD laws are currently operating. In NSW, its VAD law comes into effect in November 2023. These laws significantly impact the Australian healthcare industry and raise complex questions about how healthcare practitioners view their role in the journey of the terminally ill patient. clinical implementation and their interplay with overlapping legislation.

However, there are important limitations to VAD laws. First, it remains unlawful in the ACT and NT to engage in VAD. It will also continue to be unlawful in NSW, until their VAD laws come into effect in November 2023. Second, Commonwealth laws prohibit the use of an electronic carriage device (phone, internet etc) for assisting someone to die. The effect of these laws is that voluntary assisted dying services cannot be provided by any means other than face-to-face interactions. This imposes limitations on access to VAD for many people, especially those in rural and remote communities. MIPS members providing voluntary assisted dying are covered for this healthcare in the same way as other healthcare. 

Self-reflection questionnaire

1-hour Reviewing Performance Activity

Part A - Reading Section

Doctors are legally obliged to provide their patients with care and treatment that reaches a reasonable standard of care and one which would be seen to be competent and professional by their peers. This is uncontroversial. 

However, determining what is reasonable can be more challenging. For example, how many times must a practitioner follow up with a patient on whether they have undertaken recommended tests, investigations or referrals? Does it depend on how serious the patient’s illness or condition is? If a referral is, for example, made by a GP for their patient to be seen by a specialist at a particular hospital, does the GP have a positive obligation to satisfy himself or herself that the patient has attended the consultation?  These questions are difficult to precisely answer, as no two patients are the same and the degree to which patients follow their doctor’s recommendations and advice can vary.  It is therefore difficult for a practitioner to know whether they are under an obligation  to investigate or follow up symptoms tests, results, referrals, or failures to attend.

Continuity of care

Continuity of care is one of the cornerstones of primary care and the breakdown of continuity can be a major factor in the occurrence of adverse incidents involving patients that can sometimes lead to litigation.

Continuity of care is when a patient experiences a series of discrete healthcare events in a coherent, connected, and consistent manner in accordance with their medical needs and personal circumstances. 

Medical defence lawyers sometimes see clinicians being sued by patients in circumstances where a failure to ensure consistent and connected healthcare has resulted in a missed or delayed diagnosis of a preventable, and sometimes terminal, medical condition. Healthcare practitioners have a duty of care to their patients and have a legal obligation to adhere to a standard of reasonable care. Encapsulated within this obligation are the principles of continuity of care. 

Continuity of care will largely be the responsibility of the GP. The GP is the central hub where communications from specialists and hospitals are directed. The GP who has the ongoing care of a patient is best placed to recognise patterns in the patient’s presentation, and their role includes proactively communicating with secondary care specialists.

However continuity of care does not always rest exclusively with a patient's GP. If a secondary care provider sees the patient on multiple occasions, then they too will owe the higher standard of care that attaches when there is an ongoing relationship with a patient. 

Common Law Interpretation of the Duty

In 2023, Australian Courts provided some welcome clarity on what is considered ‘reasonable’ when it comes to a doctor following up a patient. The ACT Court of Appeal found in favour of a GP who had been accused of failing to follow up on a surgical referral for a corn on the sole of the plaintiff’s foot. The GP referred the plaintiff to a specialist in March 2014 and followed up on the referral in May 2014. Two years later, the plaintiff developed a foot infection requiring hospitalisation. The referral had still not been actioned. 

The Court found that, at the time the referral was made, the waiting time in the ACT was excessive and that, even if the GP had followed up, it would not have resulted in the patient being seen sooner. The Court made it clear that when the task which the doctor is accused of not doing is seen to be ‘onerous’, the Court may hold it to be beyond what is part of the doctor’s reasonable duty of care. This decision demonstrates that there is a limit to a GP’s scope of duty, especially in exceptional circumstances that are outside of a GP’s control. 

In 2023, MIPS defended a matter to trial in the District Court of NSW that also expounded the limits of the scope of a doctor’s duty of care. In that matter, the plaintiff alleged that a GP failed to investigate symptoms that caused a delay in the diagnosis of coeliac disease. The consultations under review spanned January 2015 to October 2020. The Court found the plaintiff to be an unreliable witness and accepted the GP’s evidence. 

In finding that there was no breach of duty of care, the Court decided that it would have been unreasonably burdensome for the GP to have undertaken further tests or referrals. Essentially, the Court was not persuaded that reasonable care required the GP to refer the plaintiff to a gastroenterologist for the purposes of investigating coeliac disease. The Court didn’t approach the matter with hindsight or outcome bias. It looked at what the doctor was dealing with at the time and whether the diagnosis and treatment was reasonable given the patients presenting symptoms and disclosed history. 

What is the duty to follow up?

The duty to follow up is part of a practitioner’s general duty of care to exercise reasonable skill and care in the provision of advice and treatment to patients. This includes follow up of test results, referrals, treatments, and appointments, including hospital admissions, especially where abnormal results are anticipated or found.

A reasonable balance is needed to ensure your duty to the patient is met “in the circumstances” of a particular clinical encounter. You cannot renege on this duty and expect your patients to follow up, arrange or interpret test results especially where they are or are likely to be abnormal. As such, in the case of litigation or regulatory action, the courts are likely to accept the patient’s presumption that “no news from a doctor is good news”.

Consider the case of Tai v Hatzistavrou (1999) where the patient consulted a gynaecologist with post-menopausal bleeding. The physical exam showed no abnormality, but a procedure was recommended to exclude cancer. 

The gynaecologist completed the admission form and gave it to the patient to arrange. The patient submitted the form to the hospital the same day and waited for the hospital to contact both herself and the gynaecologist to arrange admission. 

The hospital lost the form and admitted that the procedure date was never set. The doctor did not follow up but thought that the 10-month delay was abnormal. 10 months later, the patient returned to the doctor as she was still bleeding. The gynaecologist arranged an urgent procedure. Unfortunately, ovarian cancer was diagnosed that had already spread to the uterus.

The gynaecologist was found negligent in not monitoring the patient’s progress, and ensuring the procedure was carried out in a timely manner, the results obtained and acted upon earlier.

Key take away: The gynaecologist did not have any follow up systems in place and relied on others, including the patient, to follow up their care. The delay changed the patient’s situation dramatically. The gynaecologist had a continuing duty to advise the patient to submit to the procedure.

Follow up issues – areas of risk

• No follow up diary system / reliance on patient
• If the patient does not re-attend
• If the patient does not understand
• If the patient cannot be contacted
• If you get results but do not review them

Other issues to consider:

• Is the lengthy test/procedure wait appropriate or avoidable?
• Is there an alternative – should you follow that up?
• If access to best investigation is delayed, ensure follow up to minimize risk to the patient.
• Monitor progress: follow up those with life threatening conditions on hospital waiting lists.

Takeaways 

Record keeping is paramount: Generally, when a practitioner has no memory of a patient, the Court will prefer the patient’s recollection. Practitioners are not expected to remember individual patients, particularly given it may have been years since a single consultation. As such, the creation of clear, comprehensive and contemporaneous health records is invaluable. For example, if the record states that the patient was given specific advice and the patient later says they were not advised, it is more likely that the Court will accept the record as an accurate representation of what advice was given. 

We recommend making a record of:

• All attempts to follow up with patients.
• Any conversations had with patients about the importance of getting a test done and the possible repercussions of not undertaking the test – as well as any response provided by the patient that indicates their awareness, understanding and/or acceptance of the advice.
• Refusal by patients to undergo your recommended test(s).
• Safety-netting advice – such as advice to return if symptoms persist despite treatment, to attend an emergency department if certain red flag symptoms arise, or to contact the referrer if they are unable to obtain an appointment or do not receive a response from a specialist or hospital.

Taking responsibility for referrals: Should a matter become disputed, the efforts made to follow up need to be recorded. It is also important to note that if a practitioner has referred a patient for a test or specialist appointment in relation to a potentially significant diagnosis, the referral needs to be treated with more urgency than a referral for non-urgent treatment or investigation. This means the practitioner will be expected to make more effort regarding following up on a potentially significant diagnosis. 

It is also important to action results when received: The Courts have often assigned blame to both a specialist who ordered a test and a GP who also received the results of the test ordered by the specialist, when neither practitioner advised the patient of the results. Therefore, if a practitioner receives results of an investigation, even if not ordered by them, that practitioner may still be responsible for communicating the results to the patient. Often this will involve confirming the patient has already received the results. It is important to document this confirmation. 

Have a robust follow up routine

• Record all tests ordered and patient no-shows
• Use a follow-up diary for ongoing management
• Have a standard patient recall letter
• Where a result is abnormal, use and document reasonable attempts to notify for follow up e.g. telephone, letter, registered letter
• Ensure proper management of test results
• Aim for consistency of follow up routines throughout your practice. 

Summary  

• Documentation – a Court will often take the view that if something doesn't appear in the medical record then it may not have been done. Good record keeping is critical to good medical practice. Taking responsibility for referrals – the records need to demonstrate a reasonable effort to follow up.  This includes ensuring that results are communicated to the patient.
• Taking responsibility for referrals – the records need to demonstrate a reasonable effort to follow up.  This includes ensuring that results are communicated to the patient.
• Practice context – if the follow up is less onerous and/or the diagnosis is significant, greater effort is expected.
• Following up is not a state of perfection – the law requires reasonable care and skill in continuity of care.
• In relation to follow up, the courts can extend your duty to ensure it occurs. Be responsible for patients who fail to attend tests or return for results or treatments.  
• Following up tests, results or referrals is not only good clinical practice, but also a legal obligation.
• Implement robust follow up systems – to do so will assist you reach the standard expected of you at law, and reliance on reliable follow up systems is a step that your peers would expect you to take.