Children under 16 years

Under the Consent to Medical Treatment and Palliative Care Act 1995 [s 12(a)] a parent or guardian of a child under 16 may consent to medical treatment for the child. However, if consent is not available or is withheld, the doctor can still proceed if:

the child consents and
the doctor is of the opinion that the child is capable of understanding and
treatment is in the child's best interests, and
a written opinion of another doctor who has personally examined the child supports the treatment.

The Family Court can also withhold or grant consent to medical treatment for a child that is the subject of Family Court proceedings, see CHILDREN. Any determination of the Family Court will override the Consent to Medical Treatment and Palliative Care Act 1995 . The Family Court's powers are very important in cases where the parents and the child do not agree about medical treatment or a doctor is concerned about the decision made by the parents and/or the child concerning treatment as stated in Marion's case (1992) 175 CLR 218.

It is important to understand that the common law test for effective consent to medical or dental treatment involves a two step process:

did the patient have the capacity to consent, that is, was the patient mature enough to understand the general nature of the proposed treatment, the risks involved and the possible effects the treatment may have on his or her life and relationships with other people?
if the patient did have legal capacity, did, in all the circumstances, he or she validly consent? This depends on whether the patient has received enough information to have a reasonable understanding of what the proposed treatment involved, what risks (other than very rare or insignificant risks) could occur if the treatment failed, and whether there has been any threats or undue pressure.

Except in emergencies, the Consent to Medical Treatment and Palliative Care Act 1995 only gives a child, or his or her parents or guardian, legal capacity to consent to treatment. Except in emergencies, when consent is not required, the second step is a question of fact for a court to decide.