Decision-making about end of life treatment by competent children
The right of a parent to consent to medical treatment is not absolute and may change over time as a child matures and becomes capable of making their own decisions. The following section discusses when children may be ‘Gillick-competent’, that is, able to make decisions about their own medical treatment, including life-sustaining treatment at the end of life.
When can a child make their own decisions about medical treatment?
A child who is competent may make their own treatment decisions without parental consent, including decisions to withhold or withdraw life-sustaining treatment.
A child will be competent – often called ‘Gillick-competent’ – if they have sufficient understanding and intelligence to fully understand the treatment decision proposed. The ability to ‘fully understand’ means more is required than simply understanding the general nature of the treatment decision.
The term ‘Gillick-competent’ arose from a landmark British case (Gillick v West Norfolk and Wisbech Area Health Authority). The issue in that case was whether a girl under 16 could lawfully give her own consent to receive contraceptive advice and treatment, without parental consent. The House of Lords decided that a child is Gillick-competent, meaning they can make decisions about their own health care and treatment without parental consent, if they achieve 'sufficient understanding and intelligence to enable him or her to understand fully what is proposed'. The court stated that this is because a parent’s authority over a child is a dwindling right that changes and yields to the child’s right to make his or her own decision as the child matures and develops.
Each case will depend on the individual child and the decision that needs to be made. A child may be Gillick-competent for some medical decisions and not for others. If a child is not Gillick-competent the child’s parents will be required to make the treatment decision in accordance with the child’s best interests.
South Australia is the only Australian jurisdiction that has a legislative provision similar to the concept of Gillick-competence. Under the Consent to Medical Treatment and Palliative Care Act 1995 (SA), a child under 16 is able to consent to treatment if the treating health professional considers the child is ‘capable of understanding the nature, consequences and risks of treatment’. The administering health professional must consider the treatment to be in the best interests of the child’s health and wellbeing, and another health professional must personally examine the child and support the treating health professional’s opinion.
In South Australia, the law also permits a child over 16 years of age to make their own treatment decisions, and his or her decision has the same legal effect as an adult’s. It is currently unclear whether the Supreme Court would be able to override a decision to refuse treatment in these circumstances (on the basis of it not being in the child’s best interests).
In Victoria a child under 18 who has decision-making capacity is able to make decisions about life-sustaining treatment in a valid Advance Care Directive.