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Commission submission - Child's Right to be Heard

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  1. OUTLINE OF SUBMISSIONS OF THE HUMAN RIGHTS AND EOUALOPPORTUNITY COMMISSION IN RESPECT OF THE ISSUE OF THE CHILD'S RIGHT TO BE HEARD
  2. OUTLINE OF SUBMISSIONS OF THE HUMAN RIGHTS AND EOUAL OPPORTUNITY COMMISSION IN RESPECT OF THE ISSUE OF WHETHER THE CHILD CAN HIMSELF CONSENT TO THIS TREATMENT

IN THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

1993 No. ML8841

APPLICANT

JOHN BRITON

ACTING PUBLIC ADVOCATE

AND

RESPONDENTS

G. P AND E.P

OUTLINE OF SUBMISSIONS OF THE HUMAN RIGHTS AND EOUALOPPORTUNITY COMMISSION IN RESPECT OF THE ISSUE OF THE CHILD'S RIGHT TO BE HEARD

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 views 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 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 tends to work against the child's right to be heard. In contrast, s.4(d) of the Guardianship Act 1987 (N. S. W.), for example, clearly directs decision-makers under that Act to take into account the views of persons who have disabilities.

The most relevant/analogous Australian cases on this point are the sterilization cases heard in the Family Court, although they all involved children with severe";' communication difficulties. There appear have been seven sterilization cases in the Family Court: Re Jane (1988) 94 F.L.R. I, Re a Teenager (1988) 94 F.L.R. 181, In re Elizabeth (1989) 13 Fam. L.R. 47, Re MM Unreported, Family Court of Australia, Warnick J., 26 November 1993, Re Marion [No.2] Unreported, Family Court of Australia, Nicholson C.J., Date of Judgment 1 May 1992; Date judgment published 21 January 1994, (1992) F,L.C. 92-318, In re S (1989) 13 Fam. L.R. 660. However, it was only in Re'Marion, [No.2] that the child's views were sought out and taken into account by the Court.

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; Toohey v. Metropolitan Police Commissioner [1965] A.C. 595, at p.607; Re Grady (1981) N.J. 426 A.2d 467, at p.482; Matter of Terwilliger (1982) Pa.Super., 450 A. 2d 1376, at p.1383.

1.3  It is therefore submitted that a child's views as to whether he or she should have any particular medical treatment should always be taken into account by a court unless there are particularly strong and cogent reasons why this should not occur (see par 1.5 below).

A child's views have a twofold relevance:

 

1.3.1  they can assist the court in deciding the issue of the child's capacity to give informed consent itself (see separate submissions)

1.3.2  they convey to the court the wishes of the child in of respect his or her own life.

See generally: Re Grady, supra. and Matter of Terwilliger, supra.

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 that the child can understand and appreciate not only the medical issues involved but also the moral, family and other issues involved in the decision: see Gillick's Case, especially at pp.174, 189; Austin, "Righting a child's right to refuse medical treatment" (1992) 7 Otago Law Review 578, at pp.593-594.

1.5  The involvement of a child in the making of 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, opcit., at p.594. Accordingly, in special circumstances it may not be appropriate to obtain a child's views about proposed medical treatment. However, it is submitted that before this course was adopted the Court should be clearly satisfied (see Briginshaw v. Briginshaw (1938) 60 C.L.R. 336) as to both of the following matters:

1.5.1  that the child was clearly not "Gillick competent" in the sense of being able to consent to the treatment by himself/herself without parental or court sanction.

1.5.2  that the proposed medical treatment 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

2. Other submissions

2.1  Children's views about their health and what is in their best interests can not only be perceptive but can also be quite accurate and reliable from a relatively early age: see generally Gamble, "Re-examining Children's Consent to Medical Treatment" (1992) 27 Australian Journal of Social Issues 194, especially at pp.198-199 where the author refers to extensive research which indicated that children as young as five years' old make reasonable decisions about their (health care) needs although using less sophisticated reasoning processes than mature children or adults.

2.2  The views of a 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 may be of considerable benefit to the child in its relationship to and with these people.

2.3  In a sensible way, a child should be kept as fully informed as possible about all matters relevant to its life lest the quality of its life -contrary to its best interests - be needlessly impaired: "Two things are terrible in childhood: helplessness (being in other people's power) and apprehension -the apprehension that something is being concealed from us because it is too bad to be told."

Elizabeth Bowen (1899-1973), Collected Impressions

IN THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

1993 No. ML8841

 

APPLICANT

JOHN BRITON

ACTING PUBLIC ADVOCATE

AND

RESPONDENTS

G. P AND E.P

 

OUTLINE OF SUBMISSIONS OF THE HUMAN RIGHTS AND EOUAL OPPORTUNITY COMMISSION IN RESPECT OF THE ISSUE OF WHETHER THE CHILD CAN HIMSELF CONSENT TO THIS TREATMENT

1. Submissions as to law

1.1  The law is clear that a child can give legally informed and effective consent to medical treatment of the kind proposed: Re Marion (1992) 175 C.L.R. 218, especially at pp.237-238, 315-317; Gillick v. West Norfolk A.H.A. [1986] A.C 112, especially at pp.169, 186.

1.2  The law as stated in Re Marion 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 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; 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 that is most consistent with Re Marion - 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, 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 Matthew 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 Re Marion 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: Re Marion, 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 Re Marion, 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 Matthew in this matter is aged eleven years old. It is submitted that while on the general state of the authorities a child of such an age may be able to give effective consent to such surgery (see, for example, Re Marion, at p.238 and especially footnote (74) therein), it is more likely the case that a child would have to be a few years older before he or she would ordinarily be considered "Gillick competent" in respect of medical treatment that so clearly involved difficult and competing issues and principles. Nevertheless, the issue is one of fact that will have to be decided.

It is perhaps significant to note that s.6 of the Consent to Medical and Dental Procedures Act 1985 (S.A.) provides that under certain circumstances a child under sixteen years of age can give legally effective consent.

In short, no presumptions should be drawn as to the issue of whether any individual child of any particular age or intellectual disability can give informed consent to medical treatment and in each case the issue will depend" on the rate of development of each individual": see Re Marion, at p.239.