A paramedic from Darwin writes for:

… advice about treating paediatric patients and obtaining consent form their parents/guardians. My particular query is; in an emergency situation where I believe certain treatments are necessary and the parent/guardian withholds consent, where do I stand? And would your advice be the same if it wasn’t possible to obtain parental consent, i.e: if parents/guardian could not be contacted?

‘Pediatrics [sic] is the branch of medicine dealing with the health and medical care of infants, children, and adolescents from birth up to the age of 18’ (http://www.news-medical.net/health/What-is-Pediatrics.aspx) and that’s almost an appropriate definition in this context.  As we’ve noted in earlier posts, parents or other legal guardians are responsible for making treatment decisions for babies and young children, but as children grow in maturity they become capable of making their own decisions – they become ‘Gillick competent’ (named after the decision in Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112. At some point they are responsible for making their own health decisions.  In NSW, for example, parental consent is required for treatment of a child under 14, between 14 or 16 either the parent or the child (if Gillick Competent) can consent and over 16 the child’s consent is required (see ‘Paramedics treating children’ (May 5, 2016)).    There does not appear to be any equivalent legislation in the Northern Territory so the common law of Gillick will apply.   As Lord Scarman said:

Lord Scarman said:

…  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.

So the first point is that if the child is sufficiently mature to give consent, and certainly if they are over 16 and appear to understand what is being proposed, then their consent is sufficient.

Let us, however, assume that we are really talking about infant children who cannot consent or even older children who because of their injuries are unable to consent.  I’ll now reverse the question and deal with the situation where it is not ‘possible to obtain parental consent, i.e: if parents/guardian could not be contacted’ or perhaps they too have been injured in the same accident.

This is an example where the common law of necessity applies.  Lord Goff in In Re F [1990] 2 AC 1 said:

… to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.

Where the child is not capable of giving consent, and there is no parent or any person standing in loco parentis (in the place of the parent) then a paramedic can treat the child in the same way he or she could treat an adult who cannot consent.  If it’s necessary to administer treatment and the motivation is to act in the best interests of the patient, then the treatment is lawful.  If a paramedic is treating a child in accordance with the normal clinical practice guidelines or protocols, then there could be little question that these conditions are met.

But necessity does not override prior objections.   After the statement quoted above, Lord Goff continued:

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

Where a parent or other lawful guardian refuses consent, ‘necessity’ would not justify treatment.  But a refusal of consent has to be (In Re T [1992] EWCA Civ 18):

  • Informed;
  • Made by a person who is competent to make the decision; and
  • Cover the situation that has in fact arisen.

Assume a child is suffering from a condition that has not been previously diagnosed, eg anaphylaxis or epilepsy or they have fallen and hit their head and are showing decreased level of consciousness.  The parents may be distressed and anxious and unable to take on board the information they are being given. They want to take their child to the family doctor, or just home to rest, and paramedics are urging the parents to let them (the paramedics) examine and treat the child and rush them to hospital.  That may be a situation where the decision maker is not and cannot be properly informed about the situation.

What if the parent does understand the situation but doesn’t want paramedic or medical assistance because they want to leave it to God or some other force?  A parent’s decision making is limited in that they have to make decisions in the best interests of their child (Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (‘Marion’s case’)).   What is in the child’s best interests is of course debatable a matter of faith – faith in God, faith in doctors etc.   It is usually assumed that parents are best placed to decide what is in a child’s best interest.   I shall return to this issue, below.

Finally assume the child is suffering from a pre-existing terminal condition and the parents and the medical team have made treatment decisions including, for example, that the child is ‘not for resuscitation’ and this has been appropriately documented.  Necessity could not justify treating a person according to paramedic procedures – and certainly not if the paramedic thought he or she had to in order to protect their own position.

So there’s a scale here – from an irrational, fear driven refusal of consent, to a set of competing values, to an informed, rational and documented prior refusal of treatment.   We know that at the end of an informed, rational and documented prior refusal of treatment, that refusal should be honoured.  But what of the other scenarios?  This is what I wrote in my book Emergency Law (2013, 4th ed, Federation Press) pp 58-59:

As a general rule parents have the right to give consent to the treatment of their children. children. With the right to give consent comes the right to withhold or refuse consent (Re: Baby D (No. 2) [2011] FamCA 176).   Where a parent consents to the treatment of their child there is no problem. Where a parent refuses to let a rescuer, particularly a trained rescuer, treat their child then the situation is more complex. If the child has suffered a minor injury it would be reasonable to respect the parent’s wishes. The volunteer first aid officer should not put a band-aid on the child’s cut hand if the child’s parent does not want them to.

The legal and moral difficulty will arise when the child requires treatment in order to save their life or prevent long term harm and the parents object. Although parents may give consent for medical treatment to be administered to their children, they may only give consent if that consent is in the best interests of the child (Marion’s case (1992) 175 CLR 218, [1992] HCA 15).  It would follow that if a parent is to refuse consent for treatment that refusal must also be motivated by the best interests of the child (Re: Baby D (No. 2) [2011] FamCA 176).  Accordingly a refusal that was not “in the best interests of the child” is unlikely to be binding.

The need for an understanding of the consequences before a refusal of consent can be considered binding is also relevant. In most cases it will be likely that when a parent says they do not want their child treated by, for example, a volunteer rescuer, they do not understand the nature of the child’s condition. If the child will die without the treatment, for example, if he or she is unconscious and needs to be turned onto their side for airway management, then the statement by the parent “don’t touch my child” will not be binding if the parent is not in a position to understand that the option is not between the first aid by the rescuer on scene and waiting for an ambulance; rather the choice that they are making is between life and death. In these circumstances, and given the urgency of the situation, the apparent refusal would not be “valid” and treating the patient would not be an assault (In re T [1992] 4 All ER 649, [1992] EWCA Civ 18).  (Even if the parent did understand the consequences, it is likely that the treatment is permissible on the basis that the parent can only refuse consent if that is in the best interests of the child, and that is unlikely in this scenario.)

Ultimately, for rescuers other than medical practitioners and perhaps members of professional ambulance services, the question of what to do in the face of a sick or injured child and a refusal by the child’s parents will be legally (and actually) very difficult. The law would appear to say that if the parents are not acting in the best interests of the child then their apparent objections may be ignored. This may, of course, come to a conflict between the parents’ honest belief as to what is in the child’s best interests and the rescuers’ equally honest, but conflicting belief. In these cases, the severity of the injuries will help determine the matter. A decision by a parent that they do not want the rescuer to bandage their child’s sprained ankle can probably be honoured. A decision by a parent that they do not want their child to be resuscitated after being struck by a car can probably be ignored. Between these two extremes lie a number of possibilities that will require the rescuer to consider how strongly they believe that some treatment should be given and what the consequences to the child will be if that treatment is not given.

There will, in these cases, also be extra legal considerations, in particular whether it is in fact possible to administer treatment in the face of parental objections. It will not be possible to treat a child whose parent has physically picked it up and carried it away. On the other hand, it may be possible to treat a child at a car accident where bystanders or police may be able to assist in restraining the distraught parent from intervening. In these cases, it is not the law, but tact, professionalism and a reassuring manner that will allow treatment to proceed.

If the matter were to come to court it is probable that the courts would find that, provided the treatment was necessary to save the child’s life or prevent serious long term harm, then it may be legally given even though the child’s parents objected.