18 March 2024

Parental consent to the medical treatment and healthcare of children in the context of split families – The importance of Informed Consent in medical practice

Gilchrist Connell


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Medical practitioners have an obligation to seek informed consent from relevant individuals and/or parents/guardians.
Australia Food, Drugs, Healthcare, Life Sciences
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Medical practitioners have an obligation to ensure that proper informed consent is obtained before any medical treatment and/or healthcare is provided to an individual. The importance of consent is paramount and should be properly considered by medical practitioners at the commencement of treatment.

The legislation governing informed consent differs between the states. Generally speaking, a parent can provide consent to their child's treatment pursuant to the Family Law Act 1975 (Cth) and the common law.

An individual's health and wellbeing must be paramount in any discussions regarding informed consent to medical treatment and/or healthcare.

Parental consent

In an ideal world, where a child is aged less than 16 years of age and a parent/guardian is required to provide consent to medical treatment to be provided to their child, that can be provided by one parent/guardian if all parents/guardians are in agreeance as to the treatment to be provided.

Complexities arise where two or more parents/guardians have conflicting views on the treatment to be provided to their child. In circumstances where that becomes apparent, a practitioner has a duty to take reasonable steps to resolve the differing parental/guardian consents. Examples of ways in which a practitioner may facilitate this include a conference with all parents/guardians whereby the nature of the treatment, consequences and risks are explained to the parents/guardians and an attempt to resolve the differences are made. If the issue is incapable of resolution in that setting, it may require escalation to a senior practitioner or manager.

If a practitioner has concerns about a parent/guardian's decision-making ability to provide consent, they should obtain advice from a senior manager or indemnity insurer.

If treatment is required in an emergency, consent should not be a barrier to treatment (provided the emergency treatment is deemed necessary, by the practitioner, due to an imminent risk to life or health).

Parental/guardian consent should always be obtained in writing and form a part of the child's medical records.

Court orders and joint parental responsibility

In some cases, where a child's parents/guardians have separated, there may be Family Court orders in place regarding the division of care arrangements for the child/children.

Unless the court order specifies, parents/guardians retain joint responsibility for the medical/health decisions in relation to their child. Parents/guardians are responsible for notifying medical practitioners of the presence of any court orders. If a practitioner is aware of court orders they must be requested and obtained at the outset. Administrative staff should be made aware of the requirement to obtain copies orders, as parents will often indicate this on new patient and registration forms which may not be sighted by the practitioner.

Where a court order is in place, written consent should be obtained from all parents/guardians prior to any treatment/health care being provided to a child, and all parents/guardians looped into correspondence and updated regarding the child's care.

Emergency situations

In an emergency, where the child's parents/guardians are available their consent should be sought by the practitioner.

If a parent/guardian refuses emergency treatment/care or there is no parent/guardian available, a practitioner may administer emergency medical treatment despite the refusal and/or lack of consent. However, the treatment must be deemed necessary in the context of an imminent risk to life or health. Ideally, this opinion should be supported in writing by at least one other medical practitioner who has independently examined the child before treatment has commenced, however, unless impractical to do so.

Key takeaways

Consent should not be presumed, and practitioners have an obligation to seek relevant informed consent from individuals and/or their parents/guardians if applicable.

  • Medical practitioners should ensure they are educated and aware of the relevant regulations and requirements in relation to informed consent – for both for adults and children.
  • Informed consent should always be sought in writing, if practically possible.
  • Written informed consent should form a part of the individual's medical records.
  • All staff in medical practices and clinics should be aware of the requirement to obtain court orders if made aware by parents/guardians that these exist.
  • If emergency medical treatment is required due to an imminent risk to the life or health of a child, parental consent does not need to be obtained.
  • Medical practitioners should seek advice from senior management and their medical indemnity insurer if they have any concerns regarding informed consent from their patients and/or their parents/guardians.

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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