Central Queensland Hospital and Health Service v Q [2016] QSC 89
Date: May 30, 2016
Application to terminate child’s pregnancy approved
Central Queensland Hospital and Health Service v Q [2016] QSC 89
Key Points
- 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.
Background
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 pregnancy.
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 take.
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).
The Law
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 [1986] AC 112 and Marion’s Case [1992] 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 consent.
In relation to the issue of whether termination of pregnancy is lawful, the case of R v Davidson [1969] 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.
Conclusion
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”.
Contact
Disclaimer: This article is intended for informational purposes only and should not be construed as legal advice. For any legal advice please contact us.