Week 24

Question 1

Young children are not?

Answer 1

not competent / autonomous

Question 2

Decisions regarding young children must be? And there decision making rights of a child are in?

Answer 2

Decisions must be in child’s best interests; Decision-making rights lie with the parents / guardians

Question 3

Parental authority may be overturned in what cases?

Answer 3

child abuse; parental incompetence & neglect; parental insistence on futile treatment; blood transfusions for JW children

Question 4

describe the maturation principle

Answer 4

Right of parent to decide in child’s best interests; however it ceases on child’s achievement of decision-making capacity

Question 5

Rights of parents to control children exist only for benefit of? emphasis is not on?

Answer 5

Rights of parents to control children exist only for benefit of children; emphasis not on parental rights; but on responsibilities for child’s welfare

Question 6

in common law states the consent is covered by what case? Why?

Answer 6

Law is based on the Gillick case (UK);No Australian consent cases (some refusal cases); In this situation; UK cases still provide the law; Gillick approved by the High Court of Australia

Question 7

describe the Gillick ratio

Answer 7

Minor can consent to medical treatment once s/he has achieved a sufficient understanding and intelligence to enable him or her to understand fully what is proposed?.

Question 8

what are the Fraser guidelines (in the Gillick case)

Answer 8

“1.Doctor assesses competence: Gillick-competence
Minor understands nature of advice; risks of sexual i/c etc.
2. Doctor cannot persuade minor to inform parents
3. Minor is likely to pursue intercourse whether or not Rx not provided
4. Without contraception; minor’s physical or mental health is likely to suffer
5. Minor’s best interests require provision of advice/Rx without parental consent”

Question 9

Describe the R (Axon) v Secretary of State for Health case

Answer 9

Single mother challenged UK Health Dept. guidelines; wanting ruling on her right to know whether daughters (13 & <16) were seeking contraceptive advice; or at least to know about any advice regarding abortion; unless provision of information was against child’s best interests

Question 10

describe the current basis for legal consent

Answer 10

Recent English cases have state that parental consent could overrule a Gillick-competent minor’s refusal of treatment; if the description was likely to result in serious injury

Question 11

Conditionality generally follows?

Answer 11

Generally follows attributed competence; including in cases of mature minors

Question 12

Minors cannot consent to ?

Answer 12

Minors cannot consent to purely cosmetic procedures; even if they are competent

Question 13

what are some critiques of the current legal situation in Australia in regards to minor competency?

Answer 13

“Courts have been reluctant to uphold competency of minors to refuse LST or psychiatric treatment; Cases supporting the mature minor principle have involved prevention of teenage
pregnancies; arguably reflecting social desire to this end as much as attributing competence to minors; asymmetry between consent and refusal by minors is arguably a form of medical paternalism; enlisting the language of autonomy but continuing the tradition of treating young people in their best interests; Sliding scale of competency is incoherent; Medical law is inconsistent with other areas of law eg minors presumed competent to stand trial for crimes (14-18); Medicare cards etc.; Psychological research shows most disparity in competence between 9-11 and 13-15; not
later; ?Best interests? should increasingly reflect the minor?s views of what is in his best interests; including emotional and psychological as well as physical; which is usually the focus of
medical & court decisions”

Question 14

"Certain courts possess a ""parens patriae"" power in relation to the welfare of children
 BECAUSE
 the community (through the courts) has the predominant influence on how children are reared and cared for.
 A. Assertion is true; Reason is true; Correct causative link.
 B. Assertion is true; Reason is true; Incorrect causative link.
 C. Assertion is true; Reason is false.
 D. Assertion is false; Reason is true.
 E. Assertion is false; reason is false."

Answer 14

Assertion is true; Reason is false.

Question 15

Briefly explain why; in Queensland; the Gillick case from the English House of Lords; largely determines the law concerning consent to medical treatment by competent young people under the age of 18 (“mature minors”)

Answer 15

Queensland has no statute law and no common law judgments which provide rules or guidance in this area. In the absence of relevant Australian law; reference must continue to be made to any relevant English common law cases for such direction. The House of Lords case of Gillick is the relevant case. It was ?approved? by the High Court of Australia in a different kind of case; but the status of the House of Lords and the High Court of Australia are sufficient for this to be the accepted law in states without statutes.

Question 16

The law in some states including Queensland allows?mature minors? to consent to medical treatment according to this English case. Competent adults can consent to; but also refuse medical treatment; even life-saving treatment. This might imply that ?mature minors? should also be able to refuse such treatment; but this is not necessarily the case. Briefly explain the ethical basis on which courts in some of these states have prevented ?mature minors? from refusing treatment in some cases.

Answer 16

the symmetry between consent and refusal applying to adults does not necessarily apply to mature minors. For children; there is a legal requirement that treatment (or omission of treatment) should be in the child?s best interest. Mature minors occupy a middle position between children and adults. Although they are competent; in cases where refusal of treatment will result in serious morbidity or death; the ?best interests? standard may be applied; to protect them against what can be regarded as hasty decisions; made without the benefit of greater ?life experience?. TheÿGillickÿcase vouchsafes the right to consent to treatment; but did not address refusals; particularly in serious cases. Courts that abide by theÿGillick principles for consent are thus not bound by them for refusal.