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In our first ten years the Commission has found that achieving change for children and young people doesn’t always follow a direct path to success.
 
But while the journey to reach our goals isn’t predictable or immediate, it's the ‘getting there’ and achieving real change for kids that will help to improve their lives, that counts.
 
In 2001 we requested the NSW Attorney General refer the issue of young people's consent to medical treatment to the NSW Law Reform Commission (NSWLRC).
 
Our concerns arose from the number of disparate laws in NSW that regulate the ability of young people to consent to, or refuse, medical treatment. We were concerned that young people and health practitioners were often uncertain as to what exactly the current law was and how they should apply it.
 
Eight years later the NSW Law Reform Commission has released its report with a finding that the current laws are “fragmented, unclear, incomplete and arguably dated”.
 
It makes important recommendations for changes to the law which are consistent with the majority of our own recommendations, to “eliminate uncertainties about when and how young people can make decisions about their health care”.
 
In our submission to the NSWLRC, we argued that any law reform and related guidelines regarding the consent of minors to medical treatment should be balanced. The approach needed to recognise the autonomous rights of children and young people, the need to safeguard and promote their best interests and also the interests of parents or guardians.
 
In addition, any laws or guidelines should clearly set out the rights of children, young people and their parents to make decisions about medical treatment, or at least be involved in such decisions, as well as the obligations and rights of medical practitioners.
 
So it is encouraging that in its report, the NSWLRC recommendations are consistent with the Commission’s recommendations in our 2004 submission.
 
The report highlights that health practitioners, young people and their parents are entitled to know what exactly the law is. It has therefore recommended that the general law relating to the consent of young people to health care should be placed in an easily accessible statute.
 
While the NSWLRC endorses the law’s current approach of leaving assessment of a young person’s ability to accept or refuse health care to the initial determination of health practitioners, it also recommends that ‘health practitioners should be able to rely on a presumption that young person over 16 is capable of consenting to health care”.
 
In other words, it is not necessary for a health practitioner to obtain parental consent in such situations where, in the opinion of the health practitioner, young people under 16 years, understands the information about the medial treatment and appreciates the reasonably foreseeable consequences of a decision to accept or refuse the proffered medical treatment.
 
However if, in the opinion of the health practitioner, the young person under 16 years lacks capacity because he or she does not understand the information or appreciate the consequences of proposed treatment, the report recommends seeking the consent of parents or guardians.
 
Our next step will be to follow up with the NSW Attorney General to pursue legislative change as a result of the NSWLRC’s recommendations
 
If these recommendations are implemented they will be an important first step in helping adults involved with young people and decision making about medical treatment to be clearer about their roles and responsibilities.
 
But they are also an important breakthrough for introducing reforms that are likely to have positive impacts on young people’s lives in regards to their own health care.

Gillian Calvert
NSW Commissioner for Children and Young People

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