This question from a ‘current bachelor of paramedic practice student’ comes in two parts.
The Mental Health Act 2007 (NSW) s 20, states that an ambulance officer may take a person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this act.
- Does this apply even in the case of a minor under the age of 14 who appears to be displaying mental health effects that are deemed to represent a danger to themselves, others or their reputation, even in the case where the guardian makes the decision not to have the child admitted? Between the Mental Health Act and the rights of the guardian which takes precedence?
The second part deals with a number of questions related to the Children and Young Persons (Care and Protection) Act 1998 (NSW). We have been told that medical decisions for children under the age of 14 are the sole domain of the legal guardian. Between 14 and 16 the children have a right to make decisions regarding their healthcare treatment but that the guardians must be notified. Whilst children over the age of 16 have right to both autonomy of decision regarding their treatment and confidential privacy with respect to their health information. Provided this is accurate the questions are below.
- First is that the definitions of child and young person are defined as under 16yrs and 16-18yrs respectively. Does this have any impact upon the age ranges discussed in the above paragraph of this email which appear to only be in effect under certain circumstances described in chapter 13 of the act? What are the relevant age ranges and associated rights that constitute the precedent for our application of treatment for a minor?
- Further to this, section 9(2)(a) states that where a child or young person has the ability to form an opinion on their safety, welfare and well-being their views must be given weight. How does this play out when those views are in conflict with the views and wishes of the guardian and/or medical advice? In the context of a paramedic situation on road which party has the final say on the treatment of said minor?
- Section 174(1) provides that a medical practitioner may carry out emergency medical treatment on a child or young person without the consent of (a) the child or young person, or (b) a parent of the child or young person, if the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life or to prevent serious damage to his or her health. This is further supported by section 175 subsection 2 (a) with respect to cases of special medical treatment. Does an ambulance officer qualify under the (unspecified) definition of a medical practitioner? The Australian Institute of Health and Welfare’s (AIHW) definition is that a medical practitioner is a person whose primary employment role is to diagnose physical and mental illnesses, disorders and injuries and prescribe medications and treatments that promote or restore good health. Under this definition the argument is that an ambulance officer does qualify and as such, in the case of an illness which is life threatening or has the likelihood of causing serious harm, we have the right to treat a minor with, or against the wishes of the child and/or guardian.
I was hoping you could provide some clarification. Additionally I realise that this email hardly qualifies as a short and succinct and I wanted to thank you in advance for taking the time on any of this, especially when this is simply for the case of my own curiosity and passion.
Well it’s certainly correct that this question or questions is not ‘short and succinct’ but it’s interesting enough.
Section 20 of the Mental Health Act 2007 (NSW) says:
(1) An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.
(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.
That section makes reference to a ‘person’ not an ‘adult’ or a ‘child’ or a ‘young person’; it is not age specific. That the Act applies to children is confirmed by s 71 that lists who might be the ‘designated carer’ for a person subject to treatment under the Act. A designated carer includes the parent of a child or if the child is over 14 a person nominated by them as their designated carer.
So the first answer is
Yes s 20 does apply in the case of a minor under the age of 14 who is mentally ill or ‘mentally disturbed’ (whatever that might mean) and where the paramedic/ambulance officer is of the view that ‘it would be beneficial to the person’s welfare’ for them to be treated under the Act.
Note that the key criteria for involuntary treatment is that it is required (see ss 14 and 15):
(a) for the person’s own protection from serious harm, or
(b) for the protection of others from serious harm.
The Act doesn’t refer to ‘reputation’ but one can imagine that in some circumstances, damage to reputation could be a serious harm.
Does the section apply in the case where the guardian makes the decision not to have the child admitted? Between the Mental Health Act and the rights of the guardian which takes precedence?
Section 20 allows an ambulance officer to transport a patient to a mental health facility, they don’t have to go to the nearest casualty department. The section doesn’t specifically say that the person can be detained without their consent or even in the face of their objection to treatment but the section has to be read in context. The section appears in ‘Chapter 3, Part 2 – Involuntary Detention and Treatment in Mental Health Facilities’ and has to be read with s 18 which says
A person may be detained in a declared mental health facility in the following circumstances: … (b) after being brought to the facility by an ambulance officer…
So I think we can safely infer that the section anticipates treatment with consent, treatment in the absence of consent, and treatment in the face of an express refusal, subject always to the criteria for involuntary admission set out in Chapter 3, Part 1 – Requirements for Involuntary Admission, Detention and Treatment and s 68 Principles for care and treatment.
If a parent refuses consent for treatment of their child who is aged under 14, then the normal issues have to be considered. Is the parent competent and informed? Are they making the decision in the best interests of the child or for some other reason (Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (‘Marion’s case’))– eg they may want to refuse treatment because it is inconvenient to go to hospital now or they would rather the child was taken to a hospital closer to home? Is that acting in the child’s best interests or their own? If the parent is not competent or informed or not acting in the child’s best interests, then there is no valid refusal and both the Act and the doctrine of necessity would justify treatment even in the face of their objection.
If the parent’s do understand the situation and genuinely believe that they are acting in the child’s best interest, the whole point of the Act is to allow, in restricted circumstances, involuntary treatment. If the paramedic believes that the situation is such that immediate detention and treatment is required, then such action would be justified. Fundamentally ‘Chapter 3, Part 2 – Involuntary Detention and Treatment in Mental Health Facilities’ is, as the title says, about ‘involuntary’ detention, that is detention where the patient (or their parent) doesn’t want it.
Of course just because a person can be detained doesn’t mean that they should be. A young person may be mentally ill or mentally disordered but it may be in their best interests to go home with mum and/or dad and seek treatment that way rather than be bundled into an ambulance, perhaps with police involvement and with obvious conflict between the paramedics, police and the parents. If the parents seem competent and reasonable and have generally taken care of their child, it may be best to leave the matter in the hands of the parents. That would be consistent with the philosophy of the Act, that ‘people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given’ and ‘any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances’ (s 68).
But if the circumstances of s 20 have been met, which requires an opinion that ‘the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ (rather than being left in the care of his or her parents) then as between the Mental Health Act and the rights of the guardian it is the Act which prevails.
The Minors Property and Contracts Act 1970 (NSW) s 49 says:
(1) Where medical treatment or dental treatment of a minor aged less than sixteen years is carried out with the prior consent of a parent or guardian of the person of the minor, the consent has effect … as if … the minor were aged twenty-one years or upwards and had authorised the giving of the consent.
(2) Where medical treatment or dental treatment of a minor aged fourteen years or upwards is carried out with the prior consent of the minor, his or her consent has effect… as if … he or she were aged twenty-one years or upwards.
That’s a pretty old fashioned way of saying that if a young person is aged over 14, they can give consent to medical treatment and if they are aged under 16 their parent or guardian can give consent. It means that where a child is under 14 the parent’s consent is essential, where they are over 16 their own consent is essential and if they are aged between 14 and 16 the consent of either the patient, or their parent, is sufficient. This also reflects the position at common law
In Gillick v West Norfolk & Wisbeck Area Health Authority  AC 112 Mrs Gillick sought orders to restrain the Area Health Authority from giving contraceptive advice to her 14 year old daughter without first obtaining Mrs Gillick’s consent. In the Court of Appeal, Parker LJ said:
It must be stated at the outset that Mrs. Gillick’s purpose in bringing the action is to establish the extent of parental rights and duties in respect of girls under 16, for there is not the slightest suggestion that any of her daughters is likely, when under 16, to need contraceptive or abortion advice or treatment much less to seek it and accept it without her knowledge and consent … It is however clear that even in the best of families something may go suddenly and badly wrong and that, if and when it does, a parent may either be unaware of the fact or left with little time in which to act. She has therefore in my opinion ample interest to justify her attempt to establish the extent of her rights and duties…
The court of appeal found that the consent of a child under the age of 16 was no consent. The matter was taken to the House of Lords. In the House of Lords, Lord Fraser said:
It is, in my view, contrary to the ordinary experience of mankind, at least in Western Europe in the present century, to say that a child or a young person remains in fact under the complete control of his parents until he attains the definite age of majority, now 18 in the United Kingdom, and that on attaining that age he suddenly acquires independence. In practice most wise parents relax their control gradually as the child develops and encourage him or her to become increasingly independent. Moreover, the degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence and it would, in my opinion, be unrealistic for the courts not to recognise these facts.
He quoted another judgment where Lord Denning put it this way (Hewer v. Bryant  1 Q.B. 357 at 369):
… the legal right of a parent to the custody of a child ends at the 18th birthday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.
Lord Scarman said:
I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.
That is now a general test for competency and a person who has that capacity is often described as being ‘Gillick competent’.
With the Minors Property and Contracts Act 1970 (NSW) the position is that a child over 14 can give consent provided they are ‘Gillick competent’. For a child under 14 their parents must give consent. Where the child is aged between 14 and 16 the consent of either the child or the parents will suffice but where they disagree, a doctor is faced with a dilemma that we can’t begin to resolve here.
To the specific questions:
- The Children and Young Persons (Care and Protection) Act 1998 (NSW) makes some provision for the treatment of children. As my correspondent has noted a child is aged under 16; a young person is aged over 16 but under 18 (s 3). Those definitions in the Children and Young Persons (Care and Protection) Act 1998 (NSW) make no difference or have no effect on The Minors Property and Contracts Act 1970 (NSW) s 49.
- How you balance a conflict is difficult. If you want to treat a young person and they agree but their parent’s do not, the young person’s consent is effective. If the parent’s want you to treat and the young person does not want treatment, the parent’s consent is effective but not if you’re going to have to use force to treat the child or forcing treatment is going to make the matter worse. Then you have to negotiate with everyone and ultimately make decisions on what is practicable and in the child’s best interests. There’s no easy answer.
- Before the current regulation of health practitioners under the Health Practitioner Regulation (Adoption Of National Law) Act 2009 (NSW) there was the Medical Practice Act 1992 (NSW). A person was registered as a ‘medical practitioner’. Today the Medical Board is ‘Regulating Australia’s medical practitioners’. The reference to a ‘medical practitioner’ in the Children and Young Persons (Care and Protection) Act 1998 (NSW) s 174 is a reference to a doctor, not a paramedic.