An orthodontist in Victoria sought legal advice on how to respond to a demand by the father of a 16 year old child, to cease a course of planned treatment.

The parents of the child were going through a bitter divorce.

The mother of the child had signed a Costs Agreement for the planned treatment at the outset of the treatment. This was done with the father’s knowledge and approval at that time.

The mother and child were keen for the treatment to proceed. The mother had informed the orthodontist that she would pay the account for the treatment.

At the point in time when the father made the demand, the child already had fixed appliances fitted. In these circumstances, the orthodontist sought advice on whether he could legally proceed with the treatment.

The orthodontist was advised that the law in Victoria recognises that a child as young as 16 can still have the capacity to consent to treatment.

The orthodontist was advised that he needed to satisfy himself that the patient herself consented to the treatment, and that provided he formed the reasonable belief that she had the capacity to do so, he could proceed with the treatment, notwithstanding the objection raised by the father.

In Australia, the test to establish whether a child has the capacity for giving consent is whether the child has achieved a sufficient understanding and maturity to enable him/ her to understand fully what is proposed and that the treatment is in the best interests of the child.

There is little guidance on how a practitioner should assess the competence of children to give informed consent. The decision must be based on a reasonably formed belief of the practitioner. Obviously, the younger the child is and the more risky the procedure, the higher the standards that necessarily have to be met in order to regard the child as competent to consent to treatment.

In this case, the orthodontist was persuaded to the view that the child was competent, having regard to her relatively mature demeanour, that she was 16 years of age, that she had already had the fixed appliances fitted and that she had been a longstanding patient, just part way through the course of treatment.

The orthodontist was advised that it would be prudent to require that both the patient and her mother sign a consent form for the further treatment. This was in addition to the practitioner making a careful record of his opinion that the patient had capacity to give valid consent. Whilst it is not a legal requirement, it was suggested that the practitioner also ask the mother to sign a new costs agreement.

Anticipating a demand by the patient’s father for the clinic to release information about the treatment and possibly the cost of the treatment, the orthodontist was advised that the patient can also make a decision to object to the release of her health information to the father. The orthodontist was advised to ask the patient whether she wanted to keep her information confidential and if she did, to respect that decision provided he formed the belief that she was mature enough to make an informed decision to that effect.

The test for determining a child’s competence for making a decision is the same in each State of Australia, however it is noteworthy that in South Australia a child, for this purposes, is defined as a person under the age of 16 and in New South Wales, a child is defined as a person under the age of 14.

If a child is under 18 years of age, or in the case of New South Wales and South Australia, under 14 and 16 years old respectively, then the child may give valid consent for medical treatment but only in circumstances where a practitioner determines that they are legally competent to do so having regard to whether the child has achieved a sufficient understanding and maturity to enable him/ her to understand fully what is proposed and that the treatment is in the best interests of the child.

Kellie Dell’Oro
Principal, Meridian Lawyers

Jehan Mata
Solicitor, Meridian Lawyers