Application to terminate child's pregnancy
Central Queensland Hospital and Health Service v Q  QSC
Until considered sufficiently mature, a child's parents can
consent to most procedures on the child's behalf.
A child is considered to be capable of giving informed consent
when he or she achieves a sufficient understanding and intelligence
to enable them to understand fully what is proposed.
The Supreme Court of Queensland has recently approved an
application in the parens patriae jurisdiction to
authorise the termination of a 12 year old's nine week
Prior to the application, the child had seen a general
practitioner, a social worker at the Central Queensland Hospital on
several occasions, two specialist obstetricians, and a
psychiatrist. All specialists involved in the child's
treatment, along with her parents and the Department of
Communities, Child Safety and Disability Services supported the
decision to terminate the pregnancy.
The child gave evidence that she found the pregnancy "very
stressful emotionally." She expressed that it caused her
periods of emotional distress which caused her to run away from
home, self-harm and attempt suicide on two occasions. Justice
McMeekin was satisfied that the child had reached her own
independent view of what she thought was the best decision to
Justice McMeekin balanced the risks associated with the
procedures that used to terminate pregnancy (the use of medication
and, if that fails, surgery). It was found that the use of
medication carried very little risk of any harmful consequences.
The risks associated with the surgery were found to be not
insignificant but the chance of serious complications was small.
Conversely, the potential mental health problems of not terminating
were found to be significant and possibly lifelong.
It was ultimately held that while termination of the child's
pregnancy would carry some risks, those risks were far outweighed
by the risks of continuing the pregnancy (including risks of
self-harm and suicide as well as physical risks and the
psycho-social implications of having a child at the age of 12).
In relation to whether a child can give informed consent to
undergo a medical procedure, the seminal cases of Gillick v
West Norfolk & Wisbech Area Health Authority  AC 112
and Marion's Case  HCA 15 were referred to. As a
general rule, until sufficiently mature, a child's parent can
consent to some, and perhaps most, procedures. It is only when a
child "achieves a sufficient understanding and intelligence to
enable him or her to understand fully what is proposed" that
the child is considered to be capable of giving informed
In relation to the issue of whether termination of pregnancy is
lawful, the case of R v Davidson  VR 667 was
referred to. In that case it was held that for the use of an
instrument with intent to procure a miscarriage to be lawful on
therapeutic grounds, the act must be necessary to preserve the
woman from serious danger to her life or her physical or mental
health which the continuance of the pregnancy would entail and not
out of proportion to the danger to be averted.
Justice McMeekin found that the termination of the pregnancy was
both lawful and necessary to avoid danger to the child's mental
and physical health. In this case, all those involved in the
child's treatment (as well as the child's parents) agreed
that the treatment was in the child's best interests, and yet,
a comprehensive assessment of the child's ability to consent
was required. This case acts as a reminder of the difficulties
associated in determining whether a child should undergo treatment
which is not necessarily considered "routine".
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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