Commission submissions: P v P
Legal
IN THE FAMILY COURT OF AUSTRALIA
AT
SYDNEY
No.
SY 4034 of 1989
BETWEEN:
surname
[ P. ]
given names [ G.O. ]
husbandAND:
surname
[ P.
given names [ J.D. ]
wife
OUTLINE
OF SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
1.
Question of competency to consent must be decided as the first issue:
-
see written submissions (attached herewith).
2.
There is a need for judicial guidelines in this area:
-
see written submissions (attached herewith).
3.
Submissions as to what are appropriate guidelines and procedural safeguards:
-
see written submissions (draft handed up earlier; updated correct version attached
herewith).
4.
Child's right to be heard:
-
see written submissions (handed up earlier).
OUTLINE
OF SUBMISSIONS BY THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN RESPECT
OF THE CHILD'S RIGHT TO BE HEARD
1.
Submissions as to Law
1.1
It is submitted that the law in Australia is both uncertain and unsatisfactory
as to the issue of whether a child's view should ordinarily be taken into account
by a court when that court is considering whether to authorise medical treatment
on the child.
It
is clear that the Family Court has the power to take into account the child's
views in relation to proposed medical treatment but it also appears clear that
there is no absolute obligation on the court to get these views: see s.64(1)(b)
of the Family Law Act 1975 (Cth). Also Order 23 r.5 of the Family Law Rules may
work against the child's right to be heard. In contrast s.4(d) of the Guardianship
Act 1987 (NSW), for example, clearly directs decision makers under that Act to
take into account the views of persons who have disabilities.
The
issue of the child's right to be heard has been relevant in the sterilisation
cases heard by the Family Court. There appears to have been seven sterilisation
cases in the Family Court: Re Jane (1988) 94 FLR 1, Re a Teenager
(1988) 94 FLR 181, In re Elizabeth (1989) 13 Fam. LR 47, Re MM (Unreported,
Family Court of Australia, Warnick J, 26 November 1993),Re Marion No. 2 (Unreported,
Nicholson C.J., Family Court of Australia, Date of Judgment, 1 May 1992, Date
of publishing of Judgment, 21 January 1994), Re M (1992) FLC 92-318, In re S (1989)
Fam. LR 660. However it appears that it was only in Re Marion (No.2) that
the child's views were sought out and taken into account by the Court.
The
issue of considering the views of a child in respect of sterilisation was discussed
in Secretary, Department of Health and Community Services v JWB and SMB
(1992) 175 CLR 218 at p.250 ("Marion's Case"); Gamble, "Re-examining
Children's Consent to Medical Treatment" (1992) 27 Australian Law Journal
of Social Issues 194 at p.198; The Australian Law Reform Commission Report
No. 52, Guardianship and Management of Property at p.28; Bright Committee, The
Law and Persons with Handicaps, Vol.2, Intellectual Handicap, Government Printer,
South Australia, 1981, as cited in Goldhar, "The Sterilization of Women with
an Intellectual Disability" (1991) 10 University of Tasmania Law Review 157,
at p.181. The issue does not appear to have been directly considered in Re
Jane or in Re a Teenager. See also Re Eve, as cited in Goldhar,
op.cit., at p.184.
1.2
Furthermore it is submitted that comparative international law strongly suggests
that a child's views as to whether he or she should have any medical treatment
are essential, useful and important: see Article 12 of the Convention on the Rights
of the Child; In the Matter of P.Y and J.Y (1993) 14 Human Rights Law Journal
280, at p.282; Re Grady (1981) NJ 426 A.2d 467 at p.482; Matter of Terwilliger
(1982) Pa.Super.,450 A. 2d 1376 at p.1383; Cf. Toohey v Metropolitan Police
Commissioner [1965] AC 595 at p.607.
1.3
It is therefore submitted that a child's views as to whether he or she should
be sterilised should always be taken into account by a court unless there are
particularly strong and cogent reasons why this should not occur (see paragraph
1.5 below).
The
calling of the child to give his or her views and, if considered appropriate,
examination of the child by the judge (to occur preferably in an appropriate way,
e.g informally in chambers in the presence of both counsel and the child's parent/s
as occurred in Re Marion (No. 2) at p.7) can have a twofold relevance:
1.3.1
it can assist the Court in deciding the issue of the child's capacity to have
informed consent (see separate submissions);1.3.2
it enables the Court to hear the child's wishes for itself: Supreme Court of
Newfoundland, St. John's, (1993) 93/0311, Human Rights Law Journal,
Vol. 14 No. 7-8, 280, at p.282; Re Grady, at p.482; Matter of Terwilliger
at p.1383.
In
both of these senses, the hearing of the child's views will be an important procedural
safeguard.
1.4
In the ordinary course the appropriate way for the child to express his or
her views to the court is through the child's separate representative. Those views
may need to be obtained with or through the assistance and involvement of persons
other than the separate representative - most notably the child's parents - in
order for the child to understand the issues involved in the decision: see Gillick
v West Norfolk AHA [1986] AC 112 ("Gillick's Case"), especially
at pp.174 and 189; Austin, "Righting a child's right to refuse medical treatment"
(1992) 7 Otago Law Review 578, at pp.593-594.
1.5
Furthermore, as stated above, it may be appropriate for the hearing of the child's
views to occur in an informal setting and in the least traumatic way for the child
with a disability.
The
involvement of a child in the making of such a major medical decision may be a
distressing, intense and damaging experience for the child: see Minow, "The
Role of Families in Medical Decisions" [1991] Utah Law Review 1 at
p.2; Austin, op.cit., at p.594.
Accordingly,
in special circumstances it may not be necessary to obtain a child's views about
the proposed sterilisation. However, it is submitted that before this course is
adopted the Court should be clearly satisfied (see Briginshaw v Briginshaw
(1983) 60 CLR 336) as to both the following matters:
1.5.1
that the child is clearly not "Gillick competent" (and will never be
so) in the sense of being able to consent to the sterilisation by himself/herself
without parental or court sanction (see separate submissions); and1.5.2
that the proposed sterilisation was not a course of treatment that reasonable
and prudent parents could - in the opinion of the court - authorise for their
child irrespective of the wishes of the child.
The
special circumstances where it is not necessary to obtain the child's views may
include the use of video evidence of the child being asked questions that may
indicate the child's views in respect of the sterilisation. The value of such
evidence may depend upon the questions being asked of the child being the same
or similar to those the Court would have asked the child.
2.
Other Submissions
2.1
Children's views about their health and what is in their best interests cannot
only be perceptive, but also can be quite accurate and reliable from a relatively
early age: see generally Gamble, op. cit., at pp.198-199, where the author
refers to extensive research which indicates that children as young as five years
of age can make reasonable decisions about their health needs although using less
sophisticated reasoning processes than mature children or adults. Of course, it
is not submitted that such young children should have a conclusive say on the
issue. Nevertheless, it is submitted that if such a young child can make such
reasonable decisions, it is possible that an older child with an intellectual
disability may also be able to do so, or at least provide a constructive useful
input to the decision.
2.2
The views of the child who is not "Gillick competent" may be of considerable
solace and assistance in difficult cases to both parents and decision makers:
these factors themselves could be of considerable comfort and benefit to the child,
parent and decision makers.
2.3
In a sensible way, a child should be kept as fully informed as possible about
all matters relevant to his or her life lest the quality of his or her life -
contrary to his or her best interests - be needlessly impaired: see John Briton,
Acting Public Advocate for the State of Victoria v. G.P and K.P and Human Rights
and Equal Opportunity Commission (Unreported, 17 May 1994, File No. ML 8841/93),
at p.7.
OUTLINE
OF SUBMISSIONS BY THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN RESPECT
OF THE ISSUE OF WHETHER THE CHILD CAN HERSELF CONSENT TO THE STERILISATION
1.
Submissions as to Law
1.1
The law is clear that a child can give legally informed and effective consent
to medical treatment in particular circumstances: Secretary, Department of
Health and Community Services v JWB and SMB ("Marion's Case") (1992)
175 CLR 218 especially at pp.237-238, 315-317; Gillick v West Norfolk AHA [1986]
AC 112 ("Gillick's Case"), especially at pp.169,186.
1.2
The law as stated in Marion's Case and Gillick's Case is consistent
with international law as to the rights of the child: see Article 12 of the Convention
on the Rights of the Child.
1.3
There is some authority to suggest that a court can override the informed consent
of the child (see Re R [1992] Fam. 11; Austin "Righting a child's
right to refuse medical treatment" (1992) 7 Otago Law Review 578,
especially at pp.578, 583-591; Re J (1 July 1992) The Times p.3)
However, it is submitted that the better view and the view most consistent with
Marion's Case is that a court has no power to override the informed consent
of a child or, if it does have such a power, it should never as a matter of discretion
exercise that power except, perhaps, in extreme circumstances (see Austin, op.
cit., at pp.586, 589-591, Re R, at p.28, Marion's Case, at pp.237-238).
1.4
Accordingly, the first decision that must be made by the Court in this matter
is whether the child, Lessli, has achieved "a sufficient understanding and
intelligence to enable him or her to understand fully what is proposed":
Gillick's Case, at pp.183-184, as followed in Marion's Case at p.237.
It is submitted that if this question is answered affirmatively then this Court
has no further role in this matter.
2.
Other Submissions
2.1
As a matter of law (as well as a matter of fact) there is no fixed age at which
a child can be said to be able to give legally effective consent to medical treatment
and it will need to be determined on the facts of each case: Marion's Case
at pp.237-238. The age at which a child will be able to give effective consent
will be influenced, inter alia, by the individual attributes of the child
as well as the complexity of the treatment issues involved: see Marion's Case
at pp.237-238 (see especially footnote 74 therein) and at pp.295-296; Austin,
op. cit., at pp.592-593 and the authorities and references cited therein.
2.2
The child, Lessli, is 17 years old. It is submitted that in terms of age alone,
it is possible that she is old enough to give effective consent to such surgery.
It is perhaps significant to note that s.6 of the Consent to Medical and Dental
Procedures Act 1985 (SA) provides that under certain circumstances a child
under 16 years can give legally effective consent.
2.3
It is submitted that consideration should also be given to a child's ability to
give informed consent despite an intellectual disability: "There is nothing
inherent in mental handicap....that prevents a person from providing competent
consent to a sterilisation": see "Sterilizing the mentally-handicapped:
Who can give consent?", Canadian Medical Association Journal, vol.22 (1980)
cited in Bright Committee, The Law and Persons with Handicaps, Vol.2, Intellectual
Handicap, Government Printer, South Australia, 1981 ("Bright Committee
Report") at p.125.
It
is submitted that as stated in Marion's Case at p.239, "it is important
to stress that it cannot be presumed that an intellectually disabled child, is
by virtue of his or her disability, incapable of giving consent to treatment.
The capacity of a child to give informed consent to medical treatment depends
on the rate of development of each individual".
2.4
It is also necessary to consider the child's capacity to give future consent
given the child's age or intellectual development: see Marion's Case at
pp.238-239, 250, 306 and 320; Re D (a minor)(wardship:sterilisation) [1976]
1 All ER 326 at p.335; Stump v Sparkman (1978) 435 US 349, cited by La
Forest J in Re Eve (1987) 31 DLR (3d) 283; Family Law Council Discussion
Paper, "Sterilisation and Other Medical Procedures on Children," October
1993, at p.21; Bright Committee Report as cited in Goldhar "The Sterilization
of Women with an Intellectual Disability" (1991) 10 University of Tasmania
Law Review 157, at p.181.
It
is submitted, therefore, that it should also be considered whether Lessli will
be able to give informed consent in the future to a sterilisation even
if it is found she is not able to do so at the present time.
OUTLINE
OF SUBMISSIONS BY THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AS TO WHY
THE FAMILY COURT SHOULD PROVIDE DETAILED REASONS AND GUIDELINES FOR THE MAKING
OF AN ORDER TO STERILISE OR NOT TO STERILISE A CHILD
1.
Terminology
In
these submissions the term "sterilisation" will be used - as it was
in Secretary, Department of Health and Community Service v. J.W.B. and S.M.B.
(1992) 175 C.L.R. 218 ("Marion's Case"), at p. 229 - as shorthand
for various surgical procedures including hysterectomy, vasectomy, ovariectomy
and tubal ligation.
Although
the Commission's submissions use this terminology, it is an essential submission
of the Commission that as the invasiveness of sterilisation procedures varies
enormously, the operation authorised (if any) must be the least invasive necessary
for the child's welfare: Marion's Case at p.259.
2.
Basis for the Need for Detailed Reasons and Guidelines in respect of Sterilisation
The Commission
refers the court to paragraph 7 of the Declaration on the Rights of Mentally Retarded
Persons which is scheduled to the Human Rights and Equal Opportunity Commission
Act 1986 and which states:
"Whenever
mentally retarded persons are unable, because of the severity of their handicap,
to exercise all their rights in a meaningful way or it should become necessary
to restrict or deny some or all of these rights, the procedure used for that restriction
or denial of rights must contain proper legal safeguards against every form of
abuse. This procedure must be based on an evaluation of the social capability
of the mentally retarded person by qualified experts and must be subject to periodic
review and to the right of appeal to higher authorities."
It
is the Commission's view that the clearest principles and guidelines should be
enunciated by the court in relation to the sterilisation of children for the following
reasons:
2.1 Need for
Consistent Criteria and Guidelines
2.1.1
Over two years has passed since Marion's Case and there have to date been
no conclusive or uniform guidelines as to the discretion under the Family Law
Act 1975 (Cth) to order a sterilisation. The criteria established by single judges
of the Family Court in the three cases since Marion's Case was decided
in the Full Court of the Family Court (Re M (1992) FLC 92-318, Re MM
(Unreported, Warnick J, Family Court of Australia) and Re Marion (No. 2)
(Unreported, Nicholson C.J., Family Court of Australia, Date of Judgment, 1 May
1992, Date of publishing of Judgment, 21 January 1994)) have not, it is respectfully
submitted, been completely consistent and have not provided any proscriptive criteria
or procedural safeguards.
2.1.2
In addition, in at least one case since Marion's Case,there has been quite
some uncertainty as to the effect of an important principle laid down by the majority
in Marion's Case: see Re MM op.cit. at 23-27.
2.1.3
Generally the lack of judicial guidelines in this area has been regretted given
the serious need for guidance: see Kennedy, "Patients, doctors and human
rights" in Blackburn and Taylor (eds), Human Rights for the 1990's ,
(1991), at pp. 90-91 (cited by Brennan J. in Marion's Case at p. 271);
Blackwood, "Sterilisation of the Intellectually Disabled : The Need for
Legislative Reform", (1991) 5 Australian Journal of Family Law (No. 2)
138 at pp.142,144,149 and 161-165; Parkinson, "Children's Rights and Doctor's
Immunities: The Implications of the High Court's Decision in Re Marion",
(1992) 6 Australian Journal of Family Law (No.2) 101 at p. 108; Dickey, "The
High Court's Decision in Re Marion", (1992) 6 Australian Journal of Family
Law (No.2) 97 at p. 99.
2.1.4
The existence of guidelines would better enable parents, guardians and carers
and their advisers to determine accurately whether authorisation would be given
by a court without having to go through the litigious process: note Marion's
Case at pp.303-304 per Deane J. and at pp.319-320 per McHugh J. This would
save delay, expense, worry and uncertainty for parents and guardians.
2.2
To Avoid a Divergence of Views
The
issue of sterilisation is a matter on which there is potential for a divergence
of views. For instance, compare the different although overlapping approaches
of the Victorian Guardianship Board (as per its published guidelines on Division
6: "Powers of Board with Respect to Medical Procedures") and the Family
Court following Marion's Case. The extent to which the judiciary has differed
in its approach to and decision-making in respect of this matter of sterilisation
is borne out by comparing two of the decisions of the Family Court since Marion's
Case which were on similar facts (Re Marion (No.2) and Re M).
See also the differing approaches in Re a Teenager (1988) 94 FLR 181 and
Re Jane (1988) 94 FLR 1 and the discussion of those two cases in Blackwood,
op.cit., pp.152-153.
2.3
Enable Effective Review
Establishing
guidelines and procedural safeguards would ensure that the decision to sterilise
is principled and therefore effectively reviewable: see Marion's Case per
Brennan J., at pp.270-274; per McHugh J.,at pp.320-321. See also Norbis -v-
Norbis (1986) 161 CLR 513 at pp.519-520 per Mason J. and Deane J., and at
pp.536-540 per Brennan J. It is of some note that in the decision of Re Marion
(No.2) there was a finding by the Court that the sterilisation was medically
necessary to prevent serious harm. However the crucial issue of whether the same
treatment would have been recommended for solving the same problems for a person
of the same age and gender without an intellectual disability (which would be
a relevant issue under the Victorian Guardianship Board criteria) was not raised.
The failure to raise this issue would have made the case much more difficult to
review by an appeal court.
2.4
Role of Separate Representative
2.4.1
Guidelines and safeguards may crystallise the role of the separate representative
in sterilisation cases. Pursuant to s.65 of the Family Law Act separate representation
for the child is only discretionary. The Commission respectfully submits that
in the special case of sterilisation it should be mandatory (see Petersen, "The
Family v. The Family Court" 16 Australian Journal of Public Health
(No.2) 196, at p.200; Bright Committee, The Law and Persons with Handicaps,
Vol.2, Intellectual Handicap, Government Printer, South Australia, 1981, as
cited in Goldhar, "The Sterilization of Women with an Intellectual Disability"
(1991) 10 University of Tasmania Law Review 157, at p.181; Re Eve
(1987) 31 DLR (3d) 283 as cited in Goldhar op. cit., at p.6; Re Jane at
pp.19-20 (following Re Grady N.J. 426 A. 2d 467) and at p.31; Scott, "Sterilization
of Mentally Retarded Persons: Reproductive Rights and Family Privacy" [1986]
Duke Law Journal 806 at p.819; Matter of Terwilliger (1982) Pa.
Super., 450 A. 2d 1376 at p.1383; cf. Re M at p.79,405 where the separate
representative supported the sterilisation; cf. In re S (1989) 13 Fam.
LR 660 at pp.668-669).
2.4.2
Additionally, it is significant that in Re Marion (No. 2) the child did
not have the protection of a separate representative (although the Department
to an extent represented her interests and this Commission made written submissions
but was not involved in the evidence at all). By contrast, in the case of Re
MM which involved a child with a similar intellectual disability to the child
in Re Marion (No.2), and also suffering epilepsy, the Court did not authorise
sterilisation. Although there were differences in the facts between the two cases,
it is submitted that it may have been significant that the child in Re MM
was separately represented.
2.5
Gravity of Decision
Guidelines
and procedural safeguards are necessary given that the consequences of an incorrect
decision are extremely serious. In Marion's Case the majority held that
sterilisation was a special case because there was a significant risk of a wrong
decision and the consequences of a wrong decision were particularly grave. For
these reasons the nature of the discretion exercised in these types of cases is
fundamentally different from the usual discretions under the Family Law Act 1975
(Cth) (cf. the comments in this respect by Heffernan J. in Re Guardianship
of Eberhardy (1981) 307 N.W. 2d 881, cited with approval in Re Eve supra
at p.33).
2.6 Nature of
Court's Discretion
2.6.1
The discretion is not, or at least should not be, a discretion which at the end
of the day involves just the application of a very general standard. Given the
nature of the discretion here, it should more closely resemble a principled decision
rather than a discretionary one: see Norbis -v- Norbis op.cit., at p.518;
Marion's Case at p.259.
2.6.2
As the discretion described by Marion's Case was as a development of the
common law (rather than by statute), and because it has been held by the High
Court to be a special case, the empirical case-by-case development of guidelines
or safeguards is not appropriate with this discretion: cf. Norbis -v- Norbis,
op.cit., at pp.533-534 per Wilson and Dawson JJ. It is submitted, therefore,
that it is necessary to formulate guidelines and procedural safeguards that indicate
the nature of and utilisation of this discretion.
OUTLINE
OF SUBMISSIONS BY THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AS TO CRITERIA
RELEVANT TO THE DISCRETION AS TO AUTHORISATION OF STERILISATION
1.
Terminology
In
these submissions the term "sterilisation" will be used - as it was
in Secretary, Department of Health and Community Service v. J.W.B. and S.M.B.
(1992) 172 C.L.R. 218 ("Marion's Case"), at p. 229 - as shorthand for
various surgical procedures including hysterectomy, vasectomy, ovariectomy and
tubal ligation.
Although
the Commission's submissions use this terminology, it is an essential submission
of the Commission that as the invasiveness of sterilisation procedures varies
enormously, the operation authorised (if any) must be the least invasive necessary
for the child's welfare: Marion's case at p.259.
2.
Criteria to be considered by the court
The
criteria to be applied by a court can be seen to fall into three general categories:
binding "authorising" criteria, binding proscriptive criteria, and non-binding
guidelines as to the exercise of the discretion to authorise sterilisation.
2.1
Binding authorising criteriaSterilisation
will always be in the best interests of the child if the Court is clearly satisfied
that it is necessary or incidental to conventional medical treatment (including
surgery) for the preservation of life, prevention of grave illness or correction
of some serious malfunction: this would appear to be the unanimous view of the
High Court in Marion's case, at pp.253, 274, 278-279, 289, 295 and 321.It
is noted that in these circumstances the surgery is within the powers, rights
and duties of a guardian under s.63E(1) of the Family Law Act 1975 (Cth) and therefore
does not require judicial authorisation (Marion's case, at p.253), although
out of prudence doctors or guardians may wish to seek such authorisation; Marion's
case, at p.279 per Brennan J.; cf. Parkinson, "Children's Rights and
Doctors' Immunities: The Implications of the High Court's Decision in Re Marion,"
(1992) 6 Australian Journal of Family Law (No.2) 101, at pp.107-108.2.2
Binding proscriptive criteriaSterilisation
will never be in the best interests of the child by reason only of any of the
following circumstances or a combination only thereof:2.2.1
solely for eugenic or "public welfare" reasons. On this submission,
useful references are: Marion's case, at pp. 275, 295, 300 and 321; the
Family Law Council Paper, at p.32; In re Elizabeth (1989) 13 Fam.L.R. 47,
at p.58.2.2.2
solely to prevent the consequences of sexual abuse. On this submission, useful
references are: Marion's case, at p.276 per Brennan J.; Re a Teenager
(1988) 94 F.L.R. 181, at p.184; Family Law Council Discussion Paper, "Sterilisation
and Other Medical Procedures on Children," October 1993 ("the Family
Law Council Paper") at p.32; Blackwood, "Sterilisation of the Intellectually
Disabled: The Need for Legislative Reform" (1991) 5 Australian Journal
of Family Law (No.2) 138, at p.153; Re MM (Unreported, Warnick, J,
Family Court of Australia) at p.14, where it was noted that sterilisation may
increase this risk; In re Elizabeth, at p.60.2.2.3
solely for contraceptive purposes. On this submission, useful references are:
Marion's case, at pp.260, 276, 321; the Family Law Council Paper, at p.32
(on the basis that it is too radical a form of contraception for children). Cf.
Marion's case at pp.323-324 per McHugh J.2.2.4
solely to remedy hygienic or other usual and practical problems of menstruation.
On this submission, useful references are: Marion's case, at p.321; Re
Eve (1986) 31 D.L.R. (4th) 1 at p.32. But cf. Re Jane (1988) 94 F.L.R.
1, at p.21.2.2.5
solely for the purpose of easing the burden on persons responsible for caring
for the child. On this submission, useful references are: Law Reform Commission
of Canada, Working Paper 24, "Sterilisation: Implications for Mentally Retarded
and Mentally Ill Persons", 1979, at p.34; Marion's case, at pp.276,
295, 300, 322; note Re Jane at pp.20, 21; In re Elizabeth, at p.60.
This is a particularly important proscription, bearing in mind that s.64(1)(bb)(v)
of the Family Law Act makes it mandatory for the Family Court to take this matter
into consideration.2.2.6
if the operation is not the last resort: Marion's case, at p.259.2.3
Guidelines for the exercise of discretion to authorise sterilisationSterilisation,
in certain limited circumstances, may be authorised by the Family Court when it
is in the best interests of the child and it is the last resort. Although such
authorisation is discretionary, and while there is no fixed rule as to what constitutes
the best interest of the child, the discretion is not at large and therefore the
Court making the decision should have regard to at least the following matters
which are likely to be relevant in the exercise of discretion in matters of this
type:2.3.1
the physical, mental or psychological health and capacity of the child with and
without sterilisation and the severity of the problems to be experienced by the
child in the absence of sterilisation. On this submission, useful references are:
Marion's case, at pp.259, 321; Re Jane, at p.20; Re X (1991) 2 N.Z.L.R.
365; The Australian Law Reform Commission, Report No 52, Guardianship and Management
of Property, at p.28; Re Marion (No.2) (Unreported, Nicholson C.J., Family
Law Court of Australia, Date of Judgement, 1 May 1992, Date of Publishing of Judgement,
21 January 1994) at p. 27.2.3.2
the capacity of the child to give present consent given the child's age. On this
submission, useful references are: Marion's case, at pp.232, 237-238, 250
and 306; Supreme Court of Newfoundland, St. John's, (1993) 93/0311, Human Rights
Law Journal, Vol. 14 No. 7-8, at p.280; Gamble, "Re-examining Children's
Consent to Medical Treatment," Australian Journal of Social Issues,
Vol. 27 No. 3 August 1992, at pp.198-199; Re X, at pp. 376-378.2.3.3
the capacity of the child to give future consent given the child's age. On this
submission, useful references are: Marion's case, at pp.238-239, 250, 306
and 320; Re D (a minor) (wardship:sterilisation) [1976] 1 All ER 326, at
p.335; See Stump v. Sparkman (1978) 435 US 349, cited by La Forest J. in
Re Eve, at p.24; the Family Law Council Paper, at p. 21; Bright Committee,
"The Law and Persons with Handicaps," Vol.2, Intellectual Handicap,
Government Printer, South Australia, 1981, as cited in Goldhar "The Sterilisation
of Women with an Intellectual Disability" (1991) 10 University of Tasmania
Law Review 157, at p.181.2.3.4
the age of the child - bearing in mind the fact that sterilisation must be a treatment
of last resort in the sense that no alternative and less drastic treatment would
be appropriate and effective, sterilisation ordinarily should not be justified
until the child has actually commenced menstruation. On this submission, useful
references are: Marion's case, at p.250 and at p.305 per Deane J.; Re
X, at pp.377, 378; Simpson, "Judges at Odds; Who should decide whether
an intellectually disabled girl should be sterilised?," Legal Service Bulletin,
Vol. 14 No. 3, June 1989, at p.104; Matter of Terwilliger, (1982) Pa. Super.,
450 A.2d 1376 at p.1383; Re Grady (1981) N.J. 426 A. 2d 467, especially
at p. 488; Victorian Guardianship Tribunal Guidelines. But cf. Re Jane,
at pp.20, 21.
Note:
of the seven main cases to come before the Family Court since 1988 in relation
to sterilisation (Re Jane, Re a Teenager, Re Elizabeth, Re MM, Re Marion [No.2],
Re M (1992) F.L.C. 92-318, Re S (1989) 13 Fam. L.R. 660), only in two had
the child commenced to menstruate (Re MM and Re Marion [No.2]).
2.3.5
whether present and future alternative remedies (including counselling, contraception,
pharmacological alternatives, training, supportive nursing and care) have been
attempted and considered. On this submission, useful references are: Marion's
case, at p. 259; Re Jane, at p.20; Australian Law Reform Commission,
Report No 52, "Guardianship and Management of Property", 1989, at p.
28; Bright Committee, op. cit. at p.126; Goldhar, at p.185.2.3.6
the views of the child. On this submission, useful references are: Marion's
case, at p.250; Family Law Act, s.64(1)(b); the Family Law Council Paper,
at p.21; Gamble, "Re-examining Children's Consent to Medical Treatment",
Australian Journal of Social Issues, Vol.27, No. 3, August 1992, at p.
198; Australian Law Reform Commission, at p.28; Bright Committee, as cited in
Goldhar, at p.181. The issue does not appear to have been directly considered
in Re Jane or in Re a Teenager. See also Re Eve, as cited
in Goldhar, at p.184.2.3.7
the extent of intellectual impairment of the child. On this submission, a useful
reference is Marion's case, at p. 306.2.3.8
potential capacity of the child to care for an infant and to understand the parent-child
relationship. On this submission, useful references are: Marion's case,
at pp.305-307, 321 and 323; Re Jane, at p.680; note generally the views
of Scott, "Sterilisation of Mentally Retarded Persons: Reproductive Rights
and Family Privacy" [1986] Duke Law Journal 806.2.3.9
detrimental consequences of the child having to continue to menstruate. On this
submission, useful references are: Marion's Case, at p.244, 305, 321; Re
X, at p.368; Re Jane, at p.21; Re Eve, at p.32; See S.C.Hayes
and R.Hayes, "Contraception for legally handicapped people: legal and ethical
issues," Healthright, Vol.1, No. 4, August 1982, at p.7.2.3.10
the child's prognosis as regards intellectual capacity and capacity to deal with
the relevant factors raised above. On this submission, useful references are:
Marion's case, at pp.298 and 305-306; Re Jane, at p.20.2.3.11
the views of the parents. On this submission, useful references are: Marion's
case, at p.251, 253, 259-260, 298-299, 305-306; Re Jane, at p.27; Bright Committee,
as cited in Goldhar, at p.181; Re a Teenager, at pp.212-219.2.3.12
the child's present and future capacity to be involved in a human relationship
or be a parent and the degree of comprehension of sexual relationships, procreation
and parenting. On this submission, useful references are: Marion's case,
at pp.305-306; Re Jane, at p.20; Re X, at p.376. Note also Re
Eve, at p.31.2.3.13
the effect of sterilisation on the long term physical health of the child. On
this submission, useful references are: Marion's case, at pp.251, 252 and
303; the Family Law Council Paper, at p.27.2.3.14
the effect of sterilisation on the long term mental health and emotional well-being
of the child and upon the child's important relationships. On this submission,
useful references are: Marion's case, at pp.252, 267, 296, 303, 321; Re
Eve, at p.30; Goldhar, at p.178; Re X, at p.377.2.3.15
the burden on persons responsible for caring for the child insofar as that may
affect the overall welfare of the child. On this submission, useful references
are: Marion's case, at pp.252, 268, 304; Re Jane, at p.21; Re
X, at p.377; Re a Teenager, at p.231; In re Elizabeth at p.63.
Cf. s.64(1)(bb)(v) of the Family Law Act which seemingly makes it mandatory for
the Family Court to consider this.2.3.16
whether the operation is substantially therapeutic or non-therapeutic (it will
usually be more difficult to establish that a non-therapeutic operation will be
in the best interests of the child). On this submission, useful references are:
Marion's case, at pp.250, 296; Re Jane, at pp.679, 689-690.2.3.17
is the least invasive surgical procedure necessary for the child's welfare being
undertaken. For example, will a tubal ligation be all that is required to meet
the child's needs as in Re B (1988) 1 A.C. 199, at pp.205, 209.2.3.18
would the same procedure be recommended for solving the same problem for an intellectually
competent child: Victorian Guardianship Board Guidelines, at p.88. Note this issue
was not raised in the matter of Re Marion [No.2] where it may have been
a crucial aspect of the matter (especially bearing in mind the seemingly contrary
medical evidence adduced in Re MM, at p.16 and In re Elizabeth,
at p.60)
3.
Standard of Proof
Particular attention, detail and care in respect of the burden of proof should
be observed, notwithstanding that it is the normal civil standard of proof which
rests upon the party seeking to obtain the authorisation for the sterilisation.
On this submission, useful references are: Briginshaw v. Briginshaw (1938)
60 C.L.R. 336, at p.372 per McTiernan J. and at pp.361-362 per Dixon J; Re
Eve, at p. 37; Re Jane, at p.27; Re MM, at p.29.
Last
updated 19 May 2003.