I’m asked this question by a first aid instructor from Queensland.

As part of first aid training we talk about consent and the need for patients to provide consent (where possible) before first aid is delivered. I understand that consent in not required when the patient is unable to provide this, such as unconsciousness.

My question is regarding consent for ‘minors’. I have recently had some debate in class as to whether the term minor relates to someone under the age of 18 or 16.

So is parental/guardian consent required before first aid is rendered to a minor (where possible), and if so, what is the age where parental/guardian consent is required.

I have addressed this earlier with respect to Northern Territory law (see The Need for Parental Consent in Emergency Situations (NT) (July 16, 2016)).  In that post I discussed the decision in Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112.  I also discussed the Minors (Property and Contracts) Act 1970 (NSW) s 49.  I concluded that ‘There does not appear to be any equivalent legislation in the Northern Territory so the common law of Gillick will apply’.  It is also the case that there is no specific legislation in Queensland so in that state too, the relevant test is that of competence.  A child can give effective consent to medical treatment if they are sufficiently mature to understand the information that they are being given and to act on that information.

Legal Aid Queensland says “A child or young person under 18 may make decisions about their own medical treatment if they’re capable of understanding its significance” (see Legal Aid Queensland Medical Consent (2015)).

Queensland Health (Queensland Health, Guide to Informed Decision-making in Healthcare (2011)) says, at [3.1.1]:

In Queensland there is no fixed lower limit below 18 years of age at which children or young persons are deemed to be able to consent to healthcare, and so, as they mature, the child’s capacity to consent generally increases. On the other hand, the authority of parents to consent on behalf of a child or young person is not absolute. Their parental responsibility decreases as the young person matures until it ceases to exist when the child reaches 18 years of age. As a result of this there may be times when both someone with parental responsibility and the child or young person simultaneously have the ability to provide consent to healthcare.

(see also Health Law Central Consent – Minors (Children and Young People) – Decision Making by ‘Mature Minors’ (Older children) ‘Gillick Competence’ (Undated) and Sara Bird Consent to medical treatment: the mature minor (RACGP, 2011)).

Discussion

A minor is a person under the age of 18, but just because a person is a minor it does not mean that they cannot given an effective consent.  Parental consent is not required where a child’s life is in danger because even though a child may be ‘gillick competent’ and able to give consent, they may not be able to refuse consent and even if they can, in a life threatening emergency there would be serious doubts about their capacity to take on the information that is being given and the consequences.

For other treatment such as assisting with a wound or illness a mature minor could give consent.  If they cannot give consent and there is no parent present, the doctrine of necessity would justify treatment that is reasonably necessary and in the child’s best interests.    If they cannot give consent and there is someone present who has parental authority then there consent should be obtained and my be implied by their cooperation with the first aid team.