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Thomson, L. --- "Whose Right to Choose? A Competent Child's Right to Refuse Medical Treatment in New Zealand" [2001] CanterLawRw 9; (2001) 8 Canterbury Law Review 145


WHOSE RIGHT TO CHOOSE? A COMPETENT CHILD'S RIGHT TO CONSENT TO AND REFUSE MEDICAL TREATMENT IN NEW ZEALAND

LUCY THOMSON[*]

Introduction

The law relating to parent and child is concerned with the problems of growth and maturity of the human:personality. If the law should impose upon the process of 'growing up' fixed age limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change.[1]

Medical decision making for children and young people[2] in New Zealand is both emotive and complex. Health is arguably the most basic and essential consideration in a child's welfare, yet no other issue creates such significant debate and tension between the legal capacities and interests of the child, parents and the state. The attention and concern of the New Zealand public and media has most recently focused on a child's medical treatment[3] in the conflict between parental responsibility and state intervention. Yet, a child's own capacity and legal competence[4] to consent, or refuse consent, to medical treatment is marked by a dearth of judicial and public attention.

At the cornerstone of health care is the right to choose. Providing one's own consent to treatment ensures that a person's autonomy, dignity and bodily sanctity are preserved. However, as the law currently stands, a competent young person has this right denied by the decision-making power of others. This stems from an archaic view that persists in New Zealand that all young persons under the age of sixteen are by virtue of their age, incompetent and are not the best judge of their own treatment.

This blanket age restriction subsists on a fragmented and confusing statutory scheme, which has endured due to apprehensive health care providers,[5] a conservative judiciary, and unresponsive legislature. Yet this orthodox view is not consistent with medical treatment accorded to adults, and ignores the altered position of children in society. New Zealand has fallen behind the rest of the world in recognising that just as adulthood is not synonymous with competence, so too is minority not synonymous with incompetence.

This paper examines this current New Zealand legislative position and the failure of health care law to reflect the participation rights of the modern child. The paper begins with an examination of the traditional approach to children's medical treatment decisions and our fragmented statutory scheme. The resulting reluctance of the health profession to deviate from orthodox practice is then discussed to show that any reform to recognise a child's independent right of decision-making must be externally imposed. Part III examines why such reform is necessary. Here, psychological evidence of the evolving capacities of the child, the benefits of a child's participation in medical treatment and the growing recognition of children in international human rights movements mean that change cannot be ignored. Part IV discusses the ability of our current legislative scheme to accommodate this change by incorporating the common law test of "Gillick competency". Although the issue remains untested by the New Zealand Courts, it is demonstrated that the Gillick principle can be applied within current legislation, but as Part V reveals this test is far from satisfactory.

The paper concludes that reform of the law is long overdue. Part VI proposes a model to address the current deficiency in the law and the changes necessary to ensure that a minor's capacity to consent is grounded on principles applicable to adults. This model will dictate that a young person found "legally competent" should acquire the capacity to consent or refuse to consent to medical treatment and should be subject to neither parental, state or judicial interference.

Part I

CONSENT TO MEDICAL TREATMENT

The modern basis for all health treatment decisions and "fundamental in the provision of health care services"[6] is the concept of informed consent. This doctrine enshrines the principle of self-determination by providing that a health professional may legally treat a patient only with the consent of that person, or within limited exceptional circumstances defined by law.

The duty to obtain consent stems from the ethical principle of individual autonomy and encompasses the right to privacy, bodily integrity and to decide and control personal aspects of one's life.[7] These notions of individual liberty require that limitations on an individual's thought and action be narrowly construed[8] and that in a medical context neither the state, nor a health practitioner may dictate a patient's treatment. The legal significance of individual autonomy is most clearly illustrated by a competent patient's refusal of medical treatment which is legally effective even if the patient may die. As Lord Donaldson, MR stated in Re T:[9]

An adult patient who. . . suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered...This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.

Consent is, therefore, the right to decide. The exact scope of this right in New Zealand has long been ill-defined and contentious, untested in our Courts as a result of the enactment of New Zealand's no-fault accident compensation scheme.[10] As Judge Cartwright observed, "as a consequence of that legislation, the law in New Zealand relating to informed consent may need to be spelt out specifically."[11]

Emanating from these concerns a 1989 working party[12] defined informed consent as the basis of "the partnership" which exists between client and health professional occurring "when someone who is competent to make a decision has sufficient information about the proposed treatment or procedure to allow them to evaluate the options without pressure and to agree or not agree to that treatment or procedure being carried out."[13] This prescription has been affirmed by pronouncements of the Medical Council of New Zealand.[14] However legal clarity and the standing of the doctrine in law[15] were not comprehensively assured until the adoption of the recent 1996 Code of Health and Disability Services Consumers Rights ("the Code").[16]

The Code places obligations on all health and disability support service providers in New Zealand. Central to its framework is Right 7 which unequivocally prescribes the Right to Make an Informed Choice and Give Informed Consent.[17] In the Code and Ministry of Health publications it is clear that informed consent is a process rather than a single act[18] and is comprised of three key elements: voluntariness, information and competence.

These elements may each be the subject of significant legal discussion. For the sake of completeness a brief overview will be undertaken of the aspects of voluntariness and information disclosure. However, the focus of this paper concerns the third element -competency.[19] Competence, or more specifically the current presumption of incompetence, forms the greatest obstacle for young people to consent their own medical treatment.

The requirement for voluntariness is confirmed in the Health and Disability Commissioner Act 1994 which defines "informed consent" as consent that is freely given.[20] I Kennedy and A Grubb note that in the context of medical care, "this requirement might appear to be easily satisfied, since compulsion, force and deception are not features of the medical armamentarium."[21] Voluntariness may, however, include more subtle external pressures such as religious beliefs as demonstrated in the leading English authority of Re T (adult refusal of medical treatment).[22]

Here the refusal of a blood transfusion by a car accident victim was vitiated by the "undue influence" of her Jehovah's Witness mother.[23]

The extent and standard of informed consent has formed the basis of debate over the principle both in New Zealand and overseas. This element concerns the nature and quality of the information imparted and forms an entirely separate element to the requirement for actual consent.[24] The standard of disclosure is settled by Rights 5 and 6 in the Code which respectively preserve the Right to Effective Communication and the Right to be Fully Informed. Right 6 sets a high standard for the service provider demanding that a consumer receive such information that a reasonable consumer in the consumer's circumstances would expect to receive,[25] and that a reasonable consumer in the consumer's circumstances would need to make an informed choice or give informed consent.[26] It is clear that this latter right exists independently within the Code. Hence irrespective of a child's own capacity to give consent, he or she is entitled to receive appropriate information.

Part II

I. THE TRADITIONAL APPROACH TO HEALTH CARE DECISIONS FOR THE NEW ZEALAND CHILD

The fundamental right to self-determination and to choose to give consent, has no place in traditional medical treatment decisions for children. A presumption of incompetence or a lack of capacity to give a legally valid consent currently places a blanket restriction on a child's autonomy and places choices in the hands of a proxy decision-maker. In New Zealand this proxy decision-maker has conventionally been the parent who is perceived as the most appropriate person to act for the child until the benchmark of sixteen[27] signifies the attainment of maturity.

This "fixed age" or "status-based rule" flows from an ad hoc and chaotic framework of traditional notions of a child's place in society which is essentially obsolete in western civilisation. The use of age as a surrogate for capacity fails to reflect the progressive and varying rates of children's intelligence and understanding. It also fails to adhere to developments at an international level and in the common law world.

The blame for the continued application of this inflexible rule does not lie solely with the New Zealand health professional. A lack of clear legislative guidance has meant decisions are formulated on an outdated statutory scheme where the orthodox approach provides essential certainty in an otherwise confusing set of rules. Adherence to this traditional rule also satisfies the paternalistic outlook inherent in medical practice and the "intolerable dilemma" faced if any action were taken which was not in the child's best interests. The medical profession may also justify this need for certainty given the potentially severe penalties faced for a failure to obtain legally valid consent prior to treatment.

The following discussion examines this current legislative framework and the reluctance of the medical profession to deviate from orthodox practice. The conservatism of practitioners is further revealed where, in a clash between medical and parental opinion, practitioners often confer decision-making to the Courts. It becomes apparent that within this traditional framework, moves by the medical profession towards greater recognition of a child's own autonomy will not be readily forthcoming. However, in light of the limited consideration of a child's competence by the New Zealand judiciary, their position remains to be seen.

II. PARENTAL RESPONSIBILITY

Legal systems within western democratic society have traditionally given parents or guardians rights and powers in respect of the upbringing of children. The extent of these powers has, however, altered significantly within the past century to advance from the historical model of children as dependent beings under their father's exclusive control.[28] At the turn of last century traditional notions of a child's ownership began to be questioned due to an emerging awareness of the vulnerability of children and the need for legislation to protect and promote child development. More recently judicial comment and societal attitudes have illustrated a shift in emphasis in parental rights, however in New Zealand the basic premise remains that the legal responsibility for the upbringing of the child lies with a child's parents who are ordinarily in the best position to act in their child's best interests. This right is provided for in s3 of Guardianship Act 1968 where a parent[29] is charged with "the custody...and the right of control" over the upbringing of the child.[30]

III. THE LEGISLATIVE POSITION

The traditional approach to medical treatment flows from these notions of parental responsibility to regard parents as having the right of decision- making for the child.[31] This assumption has been justified as emanating from the position of children in society, the sanctity of the family unit, and the notion that "children have an interest in intimate relationships and receiving care from those who know and care for them best".[32] New Zealand's governing legislation on the welfare of children therefore accepts that parents typically have control over a child's medical decision making,[33] a right which arguably subsists until the age of legal capacity is attained. Section 25 of the Guardianship Act 1968 then allows a young person of sixteen years or older to consent to any medical or dental procedure as if they were of full age:[34]

25. Consents to operations -
(1) Subject to subsection (6) of this section, the consent of a child of or over the age of sixteen years to any donation of blood by him, or to any medical, surgical, or dental procedure[35] (including a blood transfusion) to be carried out on him, for his benefit by a person professionally qualified to carry it out, shall have the effect as if he were of full age.[36]
(3) Where the consent of any other person to any medical, surgical, or dental procedure (including a blood transfusion) to be carried out on a child is necessary or sufficient, consent may be given -
By the guardian of the child; or
If there is no guardian in New Zealand or no such guardian can be found with reasonable diligence or is capable of giving consent, by a person in New Zealand who has been acting in the place of a parent; or
If there is no person in New Zealand who has been so acting, or if no such person can be found with reasonable diligence or is capable of giving consent, by a District Court Judge or the Director-General.
Nothing in this section shall limit or affect any enactment or rule of law whereby in any circumstances
No consent or no express consent is necessary; or
The consent of the child in addition to that of any other person is necessary; or .
...the consent of any other person instead of the consent of the child is sufficient.
Except to the extent that this section enables a blood transfusion (as defined in subsection (1) of section 126B of Health Act 1956) to be administered to a child without the consent of any other person, nothing in this section shall affect the provisions of the said section 126B.

The lack of explicit reference to consent from children under sixteen in s25 and reference to consent of a guardian or proxy in s25(3) have lead to the presumption that consent for treatment must be obtained from persons other than the child before treatment is administered. This view is borne out in guidance for orthodox medical practice,[37] and also gains support from judicial statements of Tompkins J in Auckland Healthcare v Liu?[38] Here the terminology of s25 was held to reinforce a child's lack of capacity, "[b]y analogy, a child under the age of sixteen is unable to give effective consent".

This conventional belief in the child's lack of capacity also relies on several inconsistent and arguably outdated common law concepts and legislative provisions. These justify actions taken by health care practitioners in the absence of any form of consent, arguably adding further complexity and confusion over when consent is necessary.

At common law, a practitioner may in certain circumstances justify treatment without consent as deriving from long subsisting doctrines of emergency and necessity. Although the precise scope of these principles is far from clear, in practical terms they legitimise the actions of a health practitioner acting in good faith and in the child's best interests, but without the consent of either parent or child. The doctrine of emergency allows a practitioner to treat without consent if the doctor acts reasonably and honestly believes, on reasonable grounds, that the treatment given is necessary to avert a serious and imminent threat to the patient's life or physical or mental health.[39] Alternatively,[40] the defence of necessity may be argued to justify a failure to obtain consent provided that the action was taken to avert the harm which was much more severe.[41] These doctrines have caused confusion in their scope and application. However it seems clear that both emergency and the wider principle of necessity[42] may be used in the medical context vitiating any requirements for consent.

A number of explicit legislative provisions also abrogate the requirements for the consent of a parent or child. Of significance is the Health Act 1956 which allows the administration of blood transfusions to children in certain circumstances without consent,[43] and the examination of children in school and early childhood education services.[44] Various paternalistic provisions also enable compulsory treatment for persons who suffer from incapacity attributable to mental disability,[45] examination of children where there is suspected ill-treatment,[46] and the appointment of proxies to consent on a person's behalf.[47] These provisions are justified on grounds of efficacy and that "the wider social good is served by not giving the person concerned the opportunity to decline treatment".[48]

Confusing this fragmented legislation are several statutory provisions that do recognise that young people under sixteen may make their own health care decisions. Legislative changes to existing Acts allow a female of any age to make her own legally valid decision in relation to an abortion,[49] and contraceptives may be prescribed without the need for parental approval, provided a doctor can establish that a child understands the implications.[50] These arbitrary changes have regulated specific areas of Government concern but provide little guidance for the actions of practitioners in other medical treatment situations.

A clear repercussion of the confusion caused by these conflicting and vague common law concepts and legislative provisions is the extreme caution the medical profession has adopted to contentious treatment decisions. The traditional insistence on parental authority does, on occasion, create a dilemma when it amounts to a direction which is contrary to accepted medical opinion. Here the cautious and paternalistic health professional has customarily sought the assistance of the Court to exercise its state interventionist powers.[51] These powers traditionally make orthodox medical treatment mandatory by limiting parental rights to actions taken in the "best interests" of the child. As Gault J observes in Re J (An Infant), "this [parental] right long recognised by the common law...was never absolute".[52]

This impasse between practitioner and parent, and the resulting state intervention has been highlighted in the past decade as several highly publicised decisions have questioned the dominance of western medical science over alternative methods, parental autonomy, and how far the state can interfere with the sanctity of the family.[53] These decisions form the basis of New Zealand case law on the question of medical treatment of children and are defined not by reference to a child's capacity but on the limits of parental autonomy and the protective jurisdiction of the state.

The leading New Zealand decision on this issue is Re J (An Infant): B and B v Director-General of Social Welfare[54] where a three-year-old boy, considered in need of a blood transfusion after a severe nose bleed, was sought to be made a ward of the Court to administer treatment despite the strong objections of his Jehovah's Witness parents. Although Parliament implicitly allows such transfusions without parental consent,[55] "about as clear a legislative 'green light', as Parliament ever gives",[56] the cautiousness of practitioners and fear of sanctions can be readily illustrated in this case where the "doctors...feared that without a court order they may have been civilly or criminally liable for assault".[57]

In the Court of Appeal their Honours[58] laid down clear guidelines on parental responsibility and the exercise of state intervention taken so as to override this responsibility. Their Honours' key finding, (stated briefly),[59] upheld an order that the boy be made a ward of the Court with a medical specialist acting as Court agent to consent to any medical treatment involving a blood transfusion.[60] The Court observed that "the parents' right to practice their religion cannot extend to imperil the life or health of the child",[61] and that s9 of the Guardianship Act 1968 empowered the Court to give consent to treatment under s25(3)(a).[62] This could occur to override the refusal of consent of the natural parents where the interests of the child so required, in accordance with welfare principle contained in s23 of the Act.[63]

Although the issue of state intervention prevailing over parental autonomy is beyond the child-focused emphasis of this paper, two recent decisions deserve mention due to the ages of the children concerned. In Auckland Healthcare Services Ltd v Liu[64] an application was made for an order to place Joseph, a twelve year old boy, under Court guardianship to enable surgery to be performed on his right eye. Joseph had already lost the sight of his left eye after painful and unsuccessful surgery, but it was estimated there would be a 70% chance of saving him from total blindness if this second surgery were performed. In refusing to grant consent to the operation Joseph's parents believed that the above prognosis was incorrect and, based on their Baptist views, believed that God would heal Joseph. "Indeed, they believe the miracle has already begun." [65] Importantly, Joseph himself expressed a view of his own belief in God and a desire that the surgery not be performed.[66] This view was dismissed by Tompkins J:

at the age of l2, he lacks the capacity to exercise his right under section 11.[67] This is reinforced by section 25 of the Guardianship Act 1968...by analogy a child under 16 is unable to give effective consent.[68]

Similar circumstances occurred in Auckland Healthcare Services Ltd v T [69] where the parents of A, a 12 year old girl suffering from malignant lymphoma, were unable to give the necessary consent to chemotherapy due to their religious beliefs. Again, it is noted that A had expressed views similar to her parents and "notwithstanding her maturity" Paterson J saw it as the Court's position to take these into account. It is apparent, however, that these views seemed to be dismissed in the decision presumably due to the description of A as "somewhat confused, understandably in the present circumstances".[70]

These instances evince the caution and paternalistic attitudes held by the medical profession and the Courts and the readiness to override the wishes of the parent, and of the child in what they believe are the child's best interests. Whilst the views of the children in both latter cases drew judicial comment, their statements were ultimately undermined by a presumed incompetence due to age. In dismissing these views without sufficient justification it would seem that our Courts clearly prescribe to orthodox notions of a child's capacity and to date have failed to sufficiently recognise the potential autonomy of the child.

IV. THE NEED FOR CERTAINTY

The reluctance of the medical profession to deviate from outmoded notions of a child's capacity can also be explained by the certainty that this prescription brings. Adhering to this established rule provides specific guidance and direction in an otherwise confusing collection of traditional and contemporary opinions regarding a child's competence.

The realities of medical practice also arguably demand fixed and certain rules. Inevitably health care may be hastily undertaken and in dealing with a patient's pain and suffering there may be little concern about a patient's rights until this suffering has ended. The certainty brought by the "status- based rule" avoids doctors being faced with what is termed an "intolerable dilemma" by Lord Donaldson MR. Before any action is taken on a child's consent, this "intolerable dilemma" demands a health practitioner determine "[o]n pain, if they got it wrong,...as a matter of law in whom the right to consent resided at the particular time in relation to the particular treatment".[71]

V. POTENTIAL SANCTIONS FOR A FAILURE TO OBTAIN CONSENT

Compounding the reluctance of practitioners to deviate from the certainty of the "status-based rule" are potential legal sanctions and professional disciplinary action faced for a failure to obtain legally valid consent.

The Courts have long accepted that any invasive medical treatment or procedure, however trivial, is unlawful, unless it is authorised by a valid consent of a patient or other lawful authority.[72] As early as 1914 Cardozo J famously observed: [73]

Every human being of adult years and sound mind has the right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.

At common law, the traditional sanctions against unwanted interference with a person's body are derived from the actionable wrong of trespass to the person. As G Austin observes, "Tort law is a jealous protector of the inviolability of the body".[74] In the context of medical treatment this action encompasses two main heads of liability, assault and battery, with the possibility of a third civil action available in negligence.

As determined by Cardozo J a lack of consent can form the basis of a criminal prosecution for assault[75] or for unlawfully injuring a person.[76] The possibility of a health practitioner facing such criminal prosecution solely due to a failure to obtain consent is however, "extremely remote".[77]

A health practitioner will customarily perform their obligations in good faith and a criminal prosecution would result only if the practitioner abused their position to a criminal degree.[78]

A civil law action may lie in the tort of battery (committed by the direct and intentional or negligent application of force to the person of another without consent),[79] or in negligence which focuses on the quality of the information given to the patient. These actions have, however, had limited practical significance in personally reprimanding practitioners due to the operation of the Accident Compensation Acts of 1972 and 1982 and under the most recent Accident Rehabilitation and Compensation Insurance Act 1992. Here common law claims for ordinary damages remain barred[80] by virtue of the term "medical misadventure"[81] which is defined widely enough to include a failure to obtain informed consent. A patient will therefore be limited to a claim in exemplary damages which requires a high degree of wrongdoing amounting to outrageous conduct[82] or flagrant disregard for the patient's rights.[83]

The limitations of the Accident Compensation scheme also circumscribe the availability of a general remedy for a failure to obtain informed consent under of New Zealand's recent Code of Health and Disability Consumers' Rights.[84] However, although claims for ordinary damages[85] and also for criminal proceedings[86] may not ensue, a failure to give effect to the Rights contained in the Code may evoke the complaint[87] and investigation procedure provided for in the Health and Disability Commissioner Act l994.[88] This Act allows a complaint to be laid directly to request the Commissioner to investigate,[89] and in the event of a breach,[90] civil proceedings may be instituted before the Complaints Review Tribunal. Here the tribunal may declare that a provider was in breach of the Code,[91] make an order under the Act, award damages or grant such other relief as it thinks fit.[92]

The Code therefore puts consumers in a stronger position than they were previously. Despite a lack of entitlement to general damages a consumer may recover damages up to $200,000 for pecuniary loss; loss of any benefit reasonably expected but for the breach, humiliation, loss of dignity and injury to feelings; or for any action in flagrant disregard of the rights of the aggrieved person.[93] The Commissioner also has broad powers to further report the matter to the appropriate health professional body for disciplinary proceedings.[94]

Professional disciplinary proceedings therefore remain a principal action for a practitioner's failure to obtain informed consent. Traditionally these have been brought under the Medical Practitioners Act 1968, but now appear under the revised Medical Practitioners Act 1995. The threat of these sanctions is arguably made more likely with the introduction of the Code, further increasing the apprehension of health practitioners to administer treatment without legally valid consent.

VI. THE ROLE OF THE HEALTH CARE PROFESSIONAL

The caution evinced by the medical profession is also linked to a patient's right to self-determination which may bring into conflict central aspects of the practitioner's role. A practitioner must accept that all sentient persons have control over their own bodies including the right to refuse treatment. Here a patient's rights are squarely in conflict with the goal and "fundamental responsibility" of the health care professional "to care and to treat".[95] This comprehensive duty of care requires that a health professional undertake to treat the patient to the best of their ability and competence,[96] fulfilling their duty both to the patient and to society. This role is therefore squarely compromised when it must be relinquished by a patient's assertions to the contrary.

This conflict is exacerbated as the health practitioner acts paternalistically to protect the perceived vulnerability of his or her child patient. As shown above there is an unwillingness to delegate decision making away from the traditional family model, but this may also be abrogated where the practitioner regards parental authority in conflict with their duty to care and to treat.

The demand for certainty, fear of sanctions, and the paternalistic attitudes of the medical profession mean that the current conservative approach adopted to a child's treatment decisions is likely to prevail in the absence of clear legislative or judicial direction to the contrary. Health care providers are loath to act contrary to what they perceive to be the child's best interests or without parental consent, and will continue to seek Court approval and state intervention for any controversial treatment they propose to undertake.

When it comes to decisions as intensely private and personal as what should be done to one's own body, who should make the value-laden, highly subjective assessment about what is "best" or the "right" form of treatment? A doctor,... a Judge, or a competent, mature patient? The answer is obvious... "It is the individual making the decision, and no one else, who lives with the pain and disease,...who must undergo or forego the treatment. And it is the individual making the decision and no one else, who if he or she survives, must live with the results of that decision." [97]

Part III

I. THE NEED FOR REFORM

The continued support of the "status-based" test of a child's capacity by both the medical profession and the courts is outdated and fundamentally deficient in light of the increasing sophistication of children in modern society. Previous justifications for this orthodox practice have been undermined, or now seem insignificant in light of clear psychological evidence of the early attainment of a child's competence, and the benefits of a child's participation in medical treatment decisions. Further discrediting the traditional approach is recognition of children in international human rights instruments, in the common law world and in New Zealand society. It seems indisputable that in New Zealand health treatment decisions the rights of autonomous choice and self-determination of the competent child cannot be ignored.

II. THE CAPACITY OF THE MODERN CHILD

The historically vulnerable and dependent child is increasingly the exception in modern society. Progress in the modern world means that children have a greater awareness and level of sophistication than in the past. Although in early childhood a child is unlikely to have the capacity for autonomous choice, psychological research indicates that as young people increasingly come closer to adult status it is difficult to separate a young person's and adult's ability to formulate opinions and make decisions, and by adolescence young people may be as competent and capable as adults to make an intelligent choice.

Concepts of childhood development occurring in stages has dominated psychological models emanating from the early work of J Paiget.[98] His work suggested that the capacity for intelligent choice, involving the ability to consider different options and their consequences, generally appears in a child somewhere between the ages of 11 and 14. Research based on these findings now argues that children's cognitive development is not as slow as Paiget believed. As Weithorn suggests:[99]

Where appropriate from legal, ethical, and clinical standpoints, most normal adolescents are capable of making competent treatment decisions. Younger children, perhaps as young as age nine, are also capable of meaningful involvement in the decision-making and treatment processes despite their somewhat less mature cognitive capacities. Related research suggests that children as young as six may be capable of such participation.

This and other research[100] clearly show that children of 12 years of age and older will generally have the ability to consent to medical treatment. When these young people exert an equivalent or even higher level of competence than adults, it is no longer justifiable to presume incompetence and to deny young people the ability to make their own autonomous choices.

III. THE REALITIES OF MODERN SOCIETY

At a more general level, there are also clear societal developments which indicate that rights of self-determination should extend to medical treatment of mature young people.

Children are now more mature, self-aware and financially independent than in the past. The stereotypical family unit is increasingly becoming the exception rather than the rule in modern society, with younger persons becoming self-sufficient or estranged from their parents. With this increasing independence it is clearly important that young people have access to medical advice and treatment without the influence of parental involvement, and that they are not deprived of necessary or desirable treatment because the consent of their parents cannot he obtained.

In New Zealand there have been a number of moves to recognise the decision making capacities of children as they mature. In adoption, custody, access, guardianship and care and protection proceedings there is provision for the child's views to be taken into account.[101] Children and young people of or over the age of 10 years may also be charged with murder or manslaughter,[102] and with other crimes if they knew the act or omission was wrong or that it was contrary to law.[103] As noted above, children of any age may also receive contraceptive treatment and young women may consent to their own abortions,[104] further recognising the maturity of the child.

The above reforms evince the piecemeal evolution of New Zealand legislation in response to specific social concerns. In light of international and domestic recognition of children's rights generally it is hoped a coherent scheme and commonality of rationale based on individual capacity will soon recognise the evolving capacity of young people in all areas. In the absence of any clearly demonstrable reason for protection from themselves and others, young people ought to be treated and respected as adults.

IV. THE BENEFITS OF A CHILD'S PARTICIPATION IN HEALTH CARE DECISIONS

The ethical foundations which form the basis for obtaining consent for medical treatment should arguably apply to even the youngest child to allow them to participate and to have their views and wishes taken into consideration. For an older child who has reached a sufficient level of competence these views must be decisive and, consistent with the choices accorded to adults, must allow young people to determine their own health treatment decisions.

At a general level the ethical concept of autonomy demands that an individual has the ability to think, decide and act on one's own deliberation freely and without coercion even if ultimately that person decides to allow another to guide their decision.[105] Even for a young child, in allowing this "ability to think"[106] the dignity, sensitivity and evolving capacities of the child will be respected. This allows them to understand the procedures being undertaken, and to minimise the fear, confusion and powerlessness associated with treatment. The ability for an older child to clearly express his or her own views also allows a child's confidence to develop and recognises the importance of childhood experience in the formation of adult personality.

These factors are all the more significant to the personal development of mature young people who have the capacity to make their own decisions. To deny competent young people control over their individual decision-making diminishes their confidence, their self-esteem, and their ability to articulate their own views and to assume adult responsibilities.

The ethical principle of beneficence also supports the participation of young people in health care decisions. This principle incorporates the requirement of non-maleficence, which requires that harm be avoided; and beneficence, which requires that one should act in the best interests of others when in a position to do so.[107] The principle of non-maleficence is sufficiently wide to include both psychological and emotional harm as well as physical harm. For a competent young person psychological and emotional harm may arguably be more damaging than prevention of physical harm and will be avoided only by recognition of a child's decision-making capacities.

Participation may also facilitate the treatment process and promote positive psychological adjustment for the young person reinforcing a primary "clinical" purpose of the giving of consent:[108]

[I]n many instances the co-operation of the patient and the patient's faith or at least confidence in the efficacy of the treatment is a major factor contributing to the treatment's success. Failure to obtain such consent will not only deprive the patient and medical staff of this advantage, but will usually make it much more difficult to administer the treatment.

The principle of beneficence is reflected within s23(1) of the Guardianship Act which regards the welfare of the child as the first and paramount consideration. This consideration is typically referred to as acting in the child's "best interests" and, in the context of medical treatment decisions, a child's right to life and to physical welfare has prevailed.[109]

However, it has been submitted that this "best interests" test has a role to play only in relation to those who are unable to make their own treatment decisions.[110] The subjective and paternalistic nature of this provision arguably makes it inappropriate in the context of a competent young person. The psychological and emotional welfare of the young person may be best advanced by promoting his or her autonomy.

V. RECOGNITION OF A CHILD'S RIGHT TO SELF DETERMINATION INTERNATIONALLY AND IN DOMESTIC LAW

Reflecting the increasing maturity of children and modernisation of society has been an international and resultant domestic shift in emphasis to recognise children as possessors of independent rights. Parental "power" is now viewed as inconsistent with children's rights both in New Zealand and overseas, and a parent's responsibility is increasingly overtaken as the child matures.

The earliest and most significant indication of this change in attitude came in the widely acclaimed decision of the House of Lords in Gillick v West Norfolk and Wisbech AHA.[111] The decision is heralded as a watershed for children's rights instigating considerable reform in the common law world and possessing "profound legal and medical significance".[112] After thorough deliberation, the majority held that a child, by virtue of his or her maturity, could have the capacity to make his or her own decisions without necessarily having to obtain consent from a guardian. The decision emanated from the "underlying principle" emphasised by Lord Scarman "that parental right yields to the child's right to make his own decision when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision".[113] Lord Fraser similarly observed that parental rights were "dwindling right[s]; which the Court will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice."[114]

Although the judgment involved the supply of contraceptive advice to a child, the decision has had wider social, medical, religious and political implications in other common law jurisdictions and in New Zealand. Extensive academic, judicial and more recently legislative approval of their Lordships' observations have endorsed the relationship between parents and children, and the "Gillick competency" test which provides a standard by which to recognise the maturity of a child. As A Grubb observes, Gillick has been 'widely acclaimed as enfranchising mature children and recognising their decision making right",[115] and according to WR Atkin "achieves a greater balance between the interests of parents, the children and the state".[116] Although Gillick has not been widely discussed by the New Zealand judiciary,[117] it has provided a background against which the interests of the child must be assessed and arguably is "generally accepted as binding for New Zealand Courts".[118]

Also of considerable significance to the New Zealand judiciary and for our domestic legislation are recent declarations at international law which recognise the importance of the child and of the child's rights in modern society.[119] Most significant among these international instruments is the United Nations Convention on the Rights of the Child ("UNCROC")[120] which constitutes the most authoritative and comprehensive statement of the fundamental rights of children.[121] Ratified by New Zealand in 1993 it creates clear expectations and obligations for the enhancement and protection of a child's substantive rights which are broadly classified as "provision, protection and participation".[122] It is this latter right of "participation", allowing a child capable of forming his or her own views the right to express those views freely in all matters affecting them,[123] that most clearly indicates the international trend towards child autonomy.

It is clear that in combination with common law developments, the effect of this international obligation has been to compel developments within New Zealand's domestic law. It is now recognised that parental rights no longer form an appropriate basis for a child's protection, and that a child's own rights ought to provide for their well-being. These rights provide the child with individual standing in a direct relationship with the state to allow any alleged infringement of these rights to be investigated and if necessary, rectified.[124]

Recognition within domestic legislation has to date seen children's rights incorporated into the statutory objects and principles contained in several family law statutes.[125] These objects demand consideration be given to children's rights in the exercise of judicial discretion, although arguably the effects of such provisions may be limited.[126] Of perhaps greater significance has been the impact of child's rights upon discretion exercised by the judiciary and in administrative decision making due to the increasing attention being given to international human rights norms. Although these international instruments are not directly binding on the New Zealand executive or judiciary, it is clear they must be considered in the exercise of discretion[127] and have played a significant role in a number of Family Court decisions.[128]

The growing importance of children's rights has also been reflected in the appointment of the Commissioner for Children whose functions point to the enhancement and promotion of children's rights.[129] At a less specific level, children's rights have been enhanced by the enactment of general rights legislation applying to all New Zealand citizens as contained in the New Zealand Bill of Rights Act 1990.[130] It is also arguable the revival of the Treaty of Waitangi as a source of rights may accord general protection to children. This may be achieved through tribal self-determination with specific rights for children forming part of iwi integrity, wellbeing and economic viability.[131]

The strength of international and domestic opinion accorded to certain rights recognised as possessed specifically by children means that their rights of participation cannot be ignored. In the context of health care decisions these expectations must, at a minimum, compel the judiciary to allow a child's view to be heard, and arguably should demand that appropriate weight be accorded to those views according to the maturity, intelligence and competence of the child.

Part IV

I. RECOGNISING THE "GILLICK COMPETENT CHILD" WITHIN OUR EXISTING LEGISLATIVE SCHEME

The discussion in Part III reveals that, for a young person who has both the understanding and requisite intelligence to make his or her own decisions, it is fundamental that neither the Courts nor the medical profession stand in his or her way. If this contentious question were currently to come before the Judiciary, the potential to allow a child's views to be heard and accorded weight would be dependent on an application of the "Gillick competency" test[132] within our legislation an argument as yet untested in the New Zealand Courts.

The discussion below explores the extent to which the Gillick principle accurately represents the position at common law. It is then contended that clear policy reasons and legislative developments indicate that should the question of a minor's competence come to the Courts, Gillick can and should be followed in New Zealand. The question remains whether the judiciary will respond appropriately.

II. THE COMMON LAW

The extent to which the common law may be applied consistently within New Zealand legislation demands an initial investigation into the scope of the Gillick "understanding based" approach. The initial potential heralded for this principle has to some extent been eroded by several subsequent decisions of the English Court of Appeal, but Gillick arguably does retain its potency and continues to reflect the current character of the common law.

The focus of the House of Lords was on parental responsibility, when Victoria Gillick, a devout Catholic mother of five daughters, objected to a Department of Health and Social Security memorandum advising that a practitioner could lawfully prescribe contraceptives to a girl under 16 without obtaining parental consent. The memorandum contemplated that a doctor should proceed on the assumption that parental consent should be obtained, but in exceptional cases the doctor could proceed without such consent if, in the doctor's judgment, such treatment was desirable.

Mrs Gillick based her action on two key grounds. She first sought a declaration that the advice was unlawful, amounting to encouragement to doctors to commit offences, as principals causing or encouraging unlawful sexual intercourse with a girl aged under sixteen,[133] or as an accessory to that act.[134] Of greater consequence was a second declaration of the unlawfulness of the memorandum, as it was inconsistent with parental rights and duties.

At first instance Woolf J dismissed both actions.[135] By providing contraceptives a doctor was neither encouraging, nor an accessory before the fact of sexual intercourse.[136] On the second ground, his Honour favoured the view that interference with parental rights would only occur if the doctor's actions amounted to trespass, but the fact a child was under 16 did not automatically mean that he or she could not consent to treatment.[137] A parent's interest in their child was described as a responsibility or duty rather than a "right" and, accordingly, giving contraceptive advice did not amount to unlawful interference with a parental "right".

These findings were reversed by the Court of Appeal[138] who surveyed a number of statutes in order to discern the relationship between parents and children. The Court concluded that a doctor who provided contraceptive treatment without parental consent did so illegally as the law determined an age below which a child was unable to make their own decisions on their upbringing. On this "status-based" approach the rights belonging to a guardian remain undiminished until a child reaches the age of medical majority at 16 as prescribed by s8 of the Family Law Reform Act 1969.[139]

By a majority of three to two, the House of Lords[140] overturned this inflexible view and adopted the view that parental rights exist for the benefit of the child, and to enable the parent to fulfil their duties to the child. Although the Law Lords gave separate and not easily reconcilable decisions, the crux of the leading judgments delivered by Lord Fraser and Lord Scarman (both with whom Lord Bridge concurred) recognised that these parental rights dwindle until they are legally extinguished[141] when a child reaches sufficient capacity to consent to his or her own medical treatment.

In Lord Scarman's opinion parental rights yield to a child's right to make his or own decisions and terminated when he or she "achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed".[142] The conceptual basis for this approach can be termed the "understanding based" approach relating to a child's capacity and is justified on the basis that:[143]

The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose upon the process of "growing up" fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in the area where the law must be sensitive to human development and social change....the courts should establish a principle flexible enough to enable justice to be achieved by its application to the particular circumstances proved by the evidence placed before them.

Lord Fraser similarly recognised an understanding-based approach:[144]

Provided the patient, whether a boy or girl is capable of understanding what is proposed and of expressing her or his own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises.

Lord Fraser emphasised, however, that treatment would only be justified in the absence of the consent or knowledge of a child's parents if certain relevant considerations were satisfied. These included whether treatment was in the best interests of the young person, and whether the girl, although aged under 16, understood the advice.[145] Lord Fraser therefore clearly regarded the test of capacity as more dependent on a doctor's discretion than on the patient. To this end he stressed that the Court's decision[146]

ought not to be regarded as a licence for doctors to disregard the wishes of parents on this matter whenever they find it convenient to do so. Any doctor who behaves in such a way would be failing to discharge his professional responsibilities, and I would expect him to be disciplined by his own professional body accordingly.

Despite the different bases of the judgments of Lord Fraser and Lord Scarman, the understanding based test of Lord Scarman has become widely recognised as a landmark in the common law to describe a child as having "Gillick capacity" or "Gillick competence".[147] A Gillick competent child therefore has the capacity to give a legally valid consent, if and when the child achieves sufficient understanding and intelligence to enable him to understand fully what is proposed.

This understanding-based approach has had a significant influence on how children's claims to autonomy might be advanced across the Commonwealth[148] and has been endorsed and adopted into English law.[149] However, due to a subsequent divergence in judicial opinion, the exact scope of this test is far from clear. These developments indicate that at least in England, a child's ability to consent is precarious.

Difficulties with this test are most apparent in subsequent interpretations by the English Court of Appeal which have eroded the core of Gillick competency in favour of the Court's view of the child's best interests and public policy. This restrictive attitude is most apparent in the decisions in Re R[150] and Re W[151] where the ability of a legally competent child to refuse medical treatment was rejected, "signalling a reversion to judicial paternalism and dealing a near fatal blow to adolescent autonomy".[152]

In Re R, a 15 year old girl who suffered from mental illness, indicated during periods of lucidity that she did not wish to receive anti-psychotic drugs. Despite psychiatric opinion that in these lucid periods R was sufficiently mature enough to make a decision in her own right, the Court held that the test of Gillick competency did not apply where the Court was faced with a fluctuating mental state.[153] Lord Donaldson MR went further, however, stating that a child's right to consent to medical treatment is not an exclusive right, but is concurrent with the parents' joint and several right to give a valid consent.[154] A health practitioner need only obtain the consent of one person; "a child can consent, but if he or she declines to do so or refuses, consent can be given by someone else who has parental rights and responsibilities".[155] The refusal of consent by a Gillick competent child would be an important factor in the doctor's decision to treat, but "does not prevent the necessary consent being obtained from another source".[156] This "source" includes the Court's wardship jurisdiction and "there was no reason whatsoever" why this jurisdiction should not "override decisions by 'Gillick competent' children".[157]

By asserting that the right to consent to medical treatment does not carry with it a right to refuse treatment, the decision drew significant criticism and legal controversy.[158] This criticism has, however, not been sufficient for the Court to rescind its position. The Court's approach was subsequently affirmed in Re W[159] where a 16 year old anorexic girl was transferred to a hospital specialising in the treatment of eating disorders against her wishes.

The Court considered the extent of their jurisdiction to override the girl's consent which by s8 of the Family Law Reform Act 1969 made her consent "effective as if [she] were full age".[160] This section drew significant argument in support of the girl's sentiments for "a failure or refusal to give consent would be an effective veto, ...because no one else would be in a position to consent". The Court considered differently and determined that the "best interests" of the child, objectively considered, could override the wishes of the child who had the requisite understanding and intelligence to make an informed decision: [161]

No minor of whatever age has the power by refusing consent to treatment to override a consent to treatment by someone who has parental responsibility for the minor and a fortiori a consent by the Court.

The effect of these decisions has blurred the exact parameters of the common law, but has not altered the potential of the "Gillick competency" test to be very influential for the rights of minors in this country. It is not in dispute that below the age of sixteen, a young person can consent to his or own treatment as if he or she is of full age if the "Gillick competency" test is satisfied. However, parents may retain a concurrent joint and several right-to consent surviving alongside that of the child. If a "Gillick competent" child refuses treatment, but the parents consent, that consent enables treatment to be undertaken lawfully.... "In a case in which the positions are reversed, it is the consent of the child which is the enabling factor..."[162] Both consent or refusal of treatment may be given under the "limitless" jurisdiction of the Court. However all decisions of parents and the Court are constrained by the requirement that the treatment is in the best interests of the young person. No young person has the power to refuse treatment so as to override the consent given by someone with parental responsibility or by the Court.

These decisions represent a clear indication of common law recognition of a child's autonomy and their ability to consent to their own medical treatment. As described above, developments at a national and international level towards child right's recognition necessitate the inclusion of this principle within New Zealand law. In arguments made out below it will be clearly shown that Gillick can be incorporated into existing New Zealand legislation. The potential application of this principle is currently untested in the New Zealand Courts and remains dependent on the attitude of the judiciary, if or when this question arises.

III. ACCOMMODATING THE COMMON LAW WITHIN THE GUARDIANSHIP ACT 1968

Despite suggestions to the contrary,[163] s25 of the Guardianship Act 1968 ("the Act") does not automatically dictate that parental or proxy consent is always required for children under the age of sixteen, and on close reading, the circumstances in which a young person under sixteen may give a valid consent are arguably far from clear. [164]

The terminology of the Act clearly allows for at least two interpretations of s25 which run consistently with an application of the common law. However, it is first necessary to note justifications for the contrary proposition under the Act that parents have the power to determine the decisions of their child. This implication is derived from the definition of "guardianship" whereby a parent has "the right of control over the upbringing of a child",[165] and also from s25(3)(a) which validates the consent of a guardian for a child's treatment. A guardian's consent is also construed to imply that consent of the child is not necessary. This is supported by s14(1)[166] which sets out a procedure for children of or over the age of 16 to dispute a parent's decision, and by s33(1) which deems the Act to be a Code in relation to guardianship and custody.[167]

Strong counter arguments, however, suggest that the common law should address the Act's silence on whether a valid consent can be given by a child under 16. First, it is apparent that s25 does not purport to limit the existence of any common law rights which may affect a child's ability to consent. On the contrary, s25(5)(a) expressly preserves the common law in circumstances where no consent or express consent is necessary, and is silent on whose consent need not be obtained. As the common law recognises the right of a child under sixteen to consent to medical treatment, it is arguable that no parental consent is necessary because the child can give a sufficient consent allowing s25(5)(a) to "embrace ... the Gillick kind of situation".[168]

A second argument can be raised to reject the power reposed solely in the guardian by virtue of the terminology of the Act. Although the Act is expressed to be a Code in relation to guardianship,[169] it does not provide for every eventuality and allows for judicial discretion and "creativity" in interpretation of the law.[170] Use of the term "guardianship" in s33(1) also does not detract from the application of common law principles as the term "guardianship" includes "all rights, powers, and duties...that were at the commencement of this Act vested in any enactment or rule of law in the sole guardian of a child". On this point Atkin argues that "in strict theory" Gillick articulates in clear words the common law which was "hitherto left unsaid" and therefore determines the "rights, duties and responsibilities ... as they were at the commencement of this Act".[171]

It has also been shown that the right of parental "control" does not give a right to exclusive or complete control over the decisions of the child, nor does s14 state parental consent to be essential.[172] As our Court of Appeal observed in Re J (An Infant):[173]

The upbringing of children extends to making decisions for them as to health and medical treatment. That is a right long recognised under the common law in any event: Gillick v West Norfolk and Wishbech AHA....though, as that case makes clear, it was never absolute. As was pointed out by Lord Scarman (pp 184-185) the scope of parental rights is reflective of parental duties towards children.

A final point to be made is that the section does envisage circumstances in which the child's consent may be legally valid. Section 25(3) demands proxy consent only when this consent is "necessary or sufficient", yet the section does not define these circumstances. By implication, there may therefore be circumstances when consent of a proxy is neither "necessary" nor "'sufficient"' without the consent of the child. Interpreting this section in this manner also allows a child's legally valid consent, and a valid refusal despite the dubious statements of the English Court of Appeal in Re R [174] and Re W.[175] "It may therefore be possible to argue that a consent from someone other than the child would be insufficient if the child had refused treatment."[176]

IV. NEW ZEALAND BILL OF RIGHTS ACT 1990

This latter argument in favour of allowing a child to refuse, as well as consent, to medical treatment is made more significant in light of the New Zealand Bill of Rights Act 1990. As stated previously children come within and may benefit from the domestic protection contained in this Act. Although the Bill of Rights does not override any other Act of Parliament,[177] an interpretation that is consistent with the Bill of Rights Act is to be preferred over any other interpretation.[178]

In relation to refusal of medical treatment this is significant due to s11 of the Bill of Rights Act which provides that: "Everyone has the right to refuse to undergo any medical treatment". The limits of the application of this provision to children is uncertain. However G Austin argues that this section should come into play in light of the two possible interpretations of s25 Guardianship Act 1968.[179] Therefore, an interpretation of s25 consistent with s11 ought to be preferred by the Court allowing a child the ability to consent and refuse medical treatment, unconstrained by the interpretations of the English Court of Appeal.

The strength of this argument for a child's equal treatment under the Act may, however, be constrained by s5 which provides that the rights and freedoms contained in the Bill of Rights Act "may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". The White Paper introducing the Bill suggested that existing restrictions on a child's ability to decide on their own medical treatment may amount to such "justified limits" on the operation of s11 and that it was "reasonably clear" that a different approach should apply to children.[180]

Section 5 may also limit a child's right to determine their own medical treatment based on the general rights contained in this Act. Prima facie children are entitled to all the rights accorded in the Bill of Rights Act including the right to freedom of thought, conscience and religion,[181] the right to manifest their religion or belief in worship,[182] and the right to freedom of expression.[183] However, it is arguable that factors such as the constitutional value of the right, the demands of society's broader welfare interests and the frustration of state concerns for the child by allowing a child unfettered discretion, may all provide a sufficient basis for the operation of s5. This state interest in the welfare of the child arguably may include protecting the child from their own self-destructive courses, an approach that may underlie the judgments of the English Court of Appeal.[184]

The interplay between the specific rights outlined above, and s8 which preserves "the right not to be deprived of life" has been closely scrutinised in the judgment of the Court of Appeal in Re J.[185] Here the Court considered that the right to religious freedom consonant with traditional parental rights,[186] cannot be absolute, and "cannot extend to imperil the life or health of a child".[187] Their Honours' approach to the conflict between the rights to life and to religious freedom was to define their scope so as not "to impinge upon and limit others". By this "definitional balancing"' the Court determined: [188]

the scope of the parental right under s15 of the Bill of Rights Act to manifest their religion in practice...exclude[s] doing or omitting anything that is likely to place at risk the life, health or welfare of their children.

It is conceded that the current methodology adopted by the Court, combined with strong constitutional arguments to the contrary, indicate that arguments relating to a child's rights under s11 may be limited. However, judicial indications do show that the Bill of Rights Act accords equal rights to children, affirming the need for the common law to be adopted into New Zealand.

V. UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD: 1989

Also of significant import to New Zealand law is the weight of international opinion on children's rights encapsulated within the United Nations Convention of the Rights of the Child 1989 ("UNCROC").[189] Ratified into New Zealand in 1993, this international declaration imposes a clear obligation upon New Zealand to take account of the UNCROC in the domestic legal process, to ensure that children's rights are adequately protected in legislation,[190] and to create mechanisms to safeguard the rights of children.[191]

By underpinning both New Zealand policy and practice, the UNCROC demands that judicial and legislative bodies recognise the wide range of rights and obligations by it. In the context of medical decision-making the state, families and caregivers must recognise the evolving capacities of the child[192] and must respect a child's right to protection and participation.

This latter right is encapsulated within Article 12 whereby a state must assure that children capable of forming their own views are able to express those views in all matters affecting them, and that those "views of the child be given full weight in accordance with the age and maturity of the child". This provision is clearly reflective of the understanding-based approach underpinning the common law and international approval of the increased autonomy of the child.

An argument may be made, however to temper this right of participation because of the primacy the UNCROC accords to the "best interests of the child",[193] parental responsibilities,[194] and a child's right to health.[195] However, it is argued that these principles cannot be used to indiscriminately override the views of the child. A child's views must be given "full weight" in accordance with the child's age and maturity. As the child matures a child's views may be balanced against a child's "best interests", but these views must become determinative when a child achieves a sufficient level of competence.

Recognition of a child's autonomy within the UNCROC is significant for its potential influence on domestic decision-making. Although the Convention has not been adopted into New Zealand's domestic law, and therefore theoretically the domestic courts have no power to enforce it, judicial determinations show that these obligations are not entirely irrelevant and may prove influential in the domestic courts.

Early statements as to the standing of the UNCROC were made in the High Court by Fraser J in H v F.[196] His Honour regarded the UNCROC as a legitimate source from which to derive New Zealand society's tenets, doctrines and rules in the context of child custody,[197] and that the "terms of the United Nations Convention reflect the generally accepted standards of society in this country".[198] However, this suggestion now arguably understates the importance of the Convention in light of the influential judgment of the Court of Appeal in Tavita v Minister of Immigration.[199] Here, a Crown argument that it had no legal obligation to take account of its international treaties was described as "unattractive...apparently implying that New Zealand's adherence to the international instruments has been at least partly window-dressing".[200] The Court found that at least in some administrative law contexts decision-makers may be required to take account of the policies underlying the UN Convention.

Adopting this reasoning, several Family Court judges have since suggested that they too may be required to take the UNCROC into account. Of particular relevance are statements of Judge Von Dadelszen in Re the W Children[201] where it was observed:[202]

It is plain from the judgment of the Court of Appeal [in Tavita]...that when the Family Court is required to exercise its discretion in cases such as the present it is legitimate, even essential, to fall back on the Convention when the Court is required to ensure that the fundamental rights of the child as proclaimed in its articles are recognised and protected.

Despite a subsequent lack of rigorous analysis of the UNCROC in the Family Court,[203] the Convention is a clear signal of the importance of children's welfare and well-being in all processes,[204] and recognises that a child's welfare will best be served by recognition of their capacities to make their views heard. It cannot readily be dismissed by the legislature or the judiciary.

VI. THE CODE OF HEALTH AND DISABILITY CONSUMERS RIGHTS 1996

Arguably the most significant indication that orthodox presumptions must be abrogated in favour of the evolving capacities of the child comes with the introduction of the Code of Health and Disability Consumers Rights 1996.

Unique in medico-legal world, the Code provides a comprehensive statement of the law in relation to consumer rights,[205] and at its core provides that no health care procedure be carried out without informed consent.[206] Of most significance to the capacity of the child is Right 7: "Right to Make an Informed Choice"[207] and Give Informed Consent" which provides(in part):

(1) Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent, except where any enactment or the common law, or any other provision of this Code provides otherwise.
(2) Every consumer must be presumed competent to make an informed choice and give informed consent, unless there are reasonable grounds for that the consumer is not competent.
(3) Whee a consumer has diminished competence, that consumer retains the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence.
(7) Every consumer has the right to refuse services and to withdraw consent to services.

Right 1 confers this Right of Choice and Consent to all "health consumers" which unquestionably includes children.[208] However, for the purposes of Rights 1(1) and 1(1) the term "consumer" also "includes a person who is entitled to give consent on behalf of that consumer".[209] This begs the question as to how far the Code clarifies or further confuses the ability of a young person to consent to or refuse medical treatment.

Unfortunately, it seems clearly arguable that there are two distinct interpretations of Right 7 which support both the orthodox and the modern approaches to a child's competence. An argument that the Code simply preserves the traditional approach derives from a lack of any explicit statement regarding the competence of the child. Right 7(1) acknowledges that the Code is subject to other legislation and the common law, implicitly preserving orthodox interpretations of the scope of s25(1) of the Guardianship Act and the belief that this does not accommodate the understanding-based test. This finds further support in the availability of proxy consent affirmed in the extended description of a "consumer" noted above. It may also be argued that despite the presumption of competence in Right 7(2), the term "reasonable grounds"' may be interpreted to incorporate the status-based approach and may be satisfied on orthodox notions of age.[210]

A more satisfactory interpretation, and arguably one which will be applied in practice, is to regard the Code as endorsing the common law position and the presumption of the competence of the child. This view is asserted unequivocally as the New Zealand position by the Ministry of Health in their recent publication entitled Consent in Child and Youth Health -Information for Practitioners:[211]

[T]he presumption that parental consent is necessary in order to give health care to children and young people under sixteen is inconsistent with common law developments and the Code of Health and Disability Consumers Rights 1996....[212]
...The Code makes a presumption of competence (Right 1(23). It presumes that every consumer is competent to make an informed choice and to give informed consent unless there are reasonable grounds for believing a consumer is not competent. A practitioner must judge whether a particular child is competent to give informed consent to a particular procedure Therefore there is no particular age at which all children are deemed to be competent to consent to all health and disability support services. Under the Code the actual age of the child is not the important question but rather the level of understanding of the child.[213]

This view accords clearly with changes in society and reform in various common law jurisdictions. By including children within the definition of "health consumer" the Code implicitly recognises that any child can, regardless of age, give legally valid informed consent. The artificiality of the status approach is further avoided by the presumption of competence contained in Right 7(2).[214] Here the Gillick approach to competency may be accommodated within the ambit of "reasonable grounds". Right 7(3) arguably also accords with the common law by recognising that where a consumer has diminished competence, that consumer retains the right to give informed consent to the extent appropriate to his or her level of competence. It is implicit in this right that both the mental capabilities of a person and the nature of the decision being made will be brought to bear on the issue of competence. As M McDowell observes:[215]

The assessment of competence in this way, having regard to the nature of the procedure, and indeed viewing procedures on a sliding scale of seriousness, is implicit in the Gillick judgments and other common law decisions.

The tests of competence in Rights 7(2) and 7(3) arguably take on further significance in light of Right 7(7) which recognises the right of every consumer to refuse services. Arguably this right bolsters rejection of the arbitrary distinction drawn between the ability to consent to and refuse treatment upheld by the English Court of Appeal in Re R and Re W.[216] The ability of a young person to refuse consent to medical treatment will therefore be determined on notions of the individual capacity of the child rather than an inflexible rule.

In summary, it is clear that the Gillick principle can and should be adopted into New Zealand law. Common law recognition of a child's capacity can be accommodated within the Guardianship Act 1968, and arguably should be accommodated in light of the endorsement of children's rights contained in the New Zealand Bill of Rights Act and UNCROC. A child as a "consumer" is also presumed competent under our Code of Consumer Rights providing further strong support for the application of the Gillick principle into New Zealand law.

Part V

I. DOES THE COMMON LAW PROVIDE SUFFICIENT RECOGNITION OF THE COMPETENT YOUNG PERSON?

As the foregoing discussion illustrates, clear and arguably convincing authorities may be raised in support of the application of the Gillick competency test into our existing law, should this question arise. However, the common law does not adequately recognise the rights of the child and in the author's opinion, is far from satisfactory.

The common law position is fundamentally flawed by a lack of clarity as to its exact scope. Aside from the difficulties raised by subsequent decisions of the English Court of Appeal, the exact Gillick standard is far from certain. It is premised on an assessment by a health practitioner who is arguably ill-qualified to accurately determine the cognitive development of a child, and it fails to take account of the realities of medical practice.

The inadequacies of this position warrant a complete overhaul of the current statutory scheme to provide comprehensive guidance to health care practitioners, children, guardians and the Courts.

II. HOW IN PRACTICE IS GILLICK COMPETENCY TO BE ASSESSED?

The most fundamental difficulty in assessing Gillick competence lies in the inability of the Courts to formulate a precise standard to satisfactorily recognise the evolving capacities of the child. As Deane J observed in Marion's Case:[217]

[T]he extent of the legal capacity of a young person to make decisions for herself and himself is not susceptible of precise abstract definition. Pending the attainment of full adulthood, legal capacity varies according to the gravity of the particular matter and the maturity and understanding of the particular young person.

This statement of the Australian High Court reiterates the essence of the decision in Gillick and the most often quoted encapsulation of standard of Gillick competency delivered by Lord Scarman:[218]

I would hold that as a matter of law the parental right to determine ...medical treatment terminates if and when the child achieves sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.

This abstract and simplistic test does not, however, make the Gillick standard easy to determine, and is flawed in several fundamental respects. It must first be recognised that Lord Scarman laid down only one of three Gillick standards. And although each of these judgments prescribes a similar requirement of "understanding" their Honours have failed to clarify what is actually required to be understood by the child, as well as the requisite level of this understanding. This lack of judicial guidance confers a broad and arguably dangerous discretion on practitioners allowing them to assess competence on any basis they wish.

Lord Scarman's approach to competency envisages an assessment where the child exhibits a high level of understanding. The child must understand fully what is proposed and must also consider family and moral matters, as well as medical issues.[219] In contrast, the judgment of Lord Fraser emphasises the doctor as the final arbiter of competence and arguably demands a lesser standard of the child. Similar terminology is used in his encapsulation of the test: [220]

it is that parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.

To further confuse the issue, Lord Templeman regards understanding as an essential element but provides no guidance as to the level of understanding necessary to satisfy his test, "[t]he effect of consent of the infant depends on the nature of the treatment and the age and understanding of the infant".[221]

Aside from the inconsistencies regarding the level of understanding, it is also unclear exactly what the patient must understand. These inconsistencies are clearly identified by Kennedy and Grubb:[222]

The problem is as follows: does a test which stipulates that the patient understands mean the doctor must satisfy himself (a) that the patient does in fact understand what is revolved, or (b) that the patient is capable generally of understanding though, as it may subsequently transpire, he did not understand in the particular case, or (c) that the patient as a reasonable patient is capable of understanding or would have understood.

The terms "understanding" and "intelligence" create further problems of interpretation.[223] The broad nature of these terms provides a practitioner with very little judicial guidance about how they are to be assessed. There is a danger that a paternalistic practitioner may equate a child's maturity with the views expected of a competent adult in similar circumstances and may inappropriately rely on the wisdom or rationality of the decision. There may also be a tendency for a paternalistic practitioner to impose such stringent criteria for understanding that it is doubtful these would be satisfied by an adult.[224]

This broad discretion to impose an almost unattainable standard of competency is readily illustrated by the decision of Ward J in Re E (A Minor) (Wardship: Medical Treatment).[225] E was a strong, athletic boy aged 15 who had been diagnosed as suffering from leukemia. Both E and his parents were devout members of the Jehovah's Witness faith and all three refused consent to conventional treatment involving blood transfusions. Alternative treatment in the form of drug therapy was administered but it became apparent that this treatment was considerably less effective and diminished E's prospects of remission to 40% to 50%.[226] This chance was assessed at 70% if conventional treatment, including blood, could now be administered. The hospital also held grave concerns about the boy's level of haemoglobin which had reached a stage where he had at most a day before a risk of death from a heart attack or stroke would materialise. The Court was therefore faced with a life and death decision on whether to grant leave to carry out the appropriate treatment.

The judgment of Ward J was delivered prior to the decisions in Re R and Re W and as E was aged at just less than 16, was centred exclusively on the way the Gillick competency test was to be applied. His Honour considered that "sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision" required a child to be able to weigh the pros and cons of treatment and understand the full range of implications that his refusal of treatment would have. For E the question was whether he understood the extent of the pain, fear and distress he would experience in the process of dying and the implications of death itself. The Court concluded that E had neither the ability nor the will to turn his mind to these ramifications. Although he was [227]

of sufficient intelligence to be able to make sufficient decisions about his well-being ... there is a range of decisions of which some are outside his ability fully to grasp their implications .... [he] does not have a full understanding of the whole implication of what the refusal of that treatment involves.

The test laid down by Ward J arguably demands an immense level of understanding on E's part. As M Brazier and C Bridge observe: [228]

was E any less capable of understanding such grave matters than say a sick youth and frightened 20 or 60-year-old? When he had passed "beyond callow youth" would he later suffer "some diminution in his convictions"?

The answer to this latter question is no. At the age of 18 E exercised his absolute right to autonomy rejecting further blood transfusions and subsequently died.

The far-reaching omnipotence conferred to Ward J merely prolonged E's inevitable death. It is apparent from his decision that judicial discretion accorded by Gillick competency test is currently without restraint. For E the addition of two years, at best, enabled him to become stronger in his convictions and to be able to fully comprehend the implications of his death. Equally, the decision subjected E to two years of distressing and abhorrent treatment and merely prolonged his wait for death.

In summary, the English standard of Gillick competence is unclear. Practitioners and the judiciary are constrained only by vague guidelines which have been subsequently eroded by decisions of the English Court of Appeal. These latter decisions clarify Gillick only to the extent that the standard required of children appears much greater than that required of adults. As Lord Donaldson MR explained in Re R:[229]

What is involved is not merely an ability to understand the nature of the proposed treatment...but a full understanding and appreciation of the consequences, both of the treatment in terms of intended and possible side effects and, equally important, the anticipated consequences of a failure to treat.

For New Zealand, the application of the Gillick test by our judiciary would arguably result in a similarly paternalistic standard. Despite the Code's declaration that "every consumer [be] presumed competent"[230] it has failed to clarify the issue. The Code loses its effect in its failure to define "competent". It would seem both our practitioners and the Courts may assess competence in any manner they choose.

II. A DOCTOR'S JUDGMENT

The limited guidance offered to New Zealand medical practitioners holds more serious implications in light of judicial reliance on Gillick competence assessed solely on a doctors' opinion. The dangers of relying on such subjective beliefs are aptly described by Brennan J:[231]

It must be remembered that in the absence of legal rules or a hierarchy of values, the...approach depends on the value system of the decision maker. Absent any rule or guideline, that approach simply creates an unexaminable discretion in the repository of power.

This power accorded to an individual doctor is, in the author's opinion, a central difficulty with Gillick. Arguably a doctor is no more qualified than a parent to determine a child's understanding and maturity. Doctors receive little comprehensive training to assess the cognitive development of children and may be ignorant of the child's circumstances which affect their maturity and ability to understand the procedure involved. It is also inappropriate for decision-making power to reside in a doctor when what is concerned are non-medical moral and family issues. A young woman's decision to have an abortion may, for example, be seen essentially as a moral choice and there may be no decisive medical reason pointing to continuation or termination of the pregnancy.

As described above, a practitioner may also equate a child's maturity with wisdom and rationality demanding more of a minor than is expected of a competent adult. This criticism may equally be directed at the decision- making ability of judges providing greater scope for manipulation of the standard, particularly where the decision of the child differs from the decision the judge would make. As P Alderson suggests "when children arrive at the same decision as adults, wise maturity may look like compliance or dependence. Conversely children's dissent may be seen as immature folly."[232]

IV. THE HEALTH CARE SETTING

Inextricably linked with a doctor's judgment is the reality of the health care context in which the doctor must make his or her decision. A doctor's consultation time is often limited, resulting in a sense of urgency which means that the pain and suffering of the patient are the only issues addressed. The realities of this setting demand that members of the profession are able to act quickly and without fear of any adverse repercussions from their decisions. People who are unconcerned about their rights in an emergency situation may potentially seek to redress their rights after their suffering has ended.

A practitioner must be able to act with certainty. But arguably the Gillick standard fails to provide this certainty. Faced with a situation bordering on emergency it seems unlikely that a doctor would have sufficient time or inclination to apply a true test of a child's competence. Instead Gillick may be adopted only to affirm a child's incapacity and resulting silence.

In summary, it is clear that the health profession must be explicitly informed of their obligations to recognise a child's voice and right to self-determination. Although common law developments may apply to the New Zealand medical context this is not sufficient as the Gillick standard is fundamentally flawed. The test pays such scant attention as to how competence is to be assessed in practice that practitioners can arguably give the term any interpretation they choose. Adding to this uncertainty the English Court of Appeal has further imposed paternalistic restraints which seem to ensure that the position of children is no better than it was in the pre-Gillick era.

A complete overhaul of our statutory framework is essential. The law must provide comprehensive guidelines for the assessment of a child's competence and must prescribe clear legal duties which give effect to the rights of the competent child. A proposal for reform is outlined below. The aim of this reform is simple. It explicitly requires that the rights of decision-making of the competent young person must be subject to neither parental, medical, judicial nor state intervention.

Part VI

I. PROPOSALS FOR REFORM

The goal of reform is to clarify the extent to which a parent, the medical profession, the Court or the state may interfere with and supervene the rights of medical decision-making of the child. The contentious moral and ethical dilemmas raised on this issue demand that guidelines must be formulated following widespread input, both from the public and from a variety of disciplines. In the discussion below, a general framework is proposed to address the inadequacies in the current law and to attempt to reach some middle ground between the expectations of society, parents, the medical profession, the government, and advocates for the rights of the child. This framework supports a presumption of competence for young people based on the psychological studies outlined above, and steers away from past arbitrary presumptions of age. Where a child's competence is in question, the framework demands an objective standard by which competence is to be assessed both by a medical practitioner and by a registered child psychiatrist. These guidelines aim to give protection and certainty to the child, and to ensure that any assessment of competence is not manipulated according to the views of the decision-maker.

II. A FRAMEWORK

The author suggests the following framework to fill the gaps in the current statutory scheme and to provide certain guidelines by which a child's competence can be objectively assessed:

Treatment of children 12 - 15 years

A child or young person aged 12 years or older is presumed competent to consent to or refuse their own medical treatment to minor medical treatment[233] unless proved otherwise.

For medical-procedures of a more serious nature, a child or young person may validly consent to or refuse medical treatment provided that:

(a) In the opinion of the health care provider, the young person is competent to consent to or refuse medical treatment;

(b) The medical practitioner's opinion is supported by the written opinion of at least one other medical practitioner who personally examines the child before the treatment is commenced; and

(c) In the opinion of the medical practitioner, the medical treatment is in the best interests of the health and wellbeing of the minor.[234]

If the consent or refusal of a young person is not held to be competently given under the above clauses, the medical practitioner must refer the child to a registered child psychologist or child psychiatrist for assessment.

Treatment of children under 12 years

A child who is under 12 years may not consent to or refuse their own medical treatment. An effective consent can be given by the child's parents or guardians where the health care is in the best interests of the young person's health and well-being.

These broad guidelines provide a starting point from which certain guidelines and obligations will be placed on health professionals and on the courts. The basis of this framework is adapted from the South Australian Consent to Medical Treatment and Palliative Care Act 1995, and more particularly from the Queensland Law Commissions' Bill, Health Care Authorisation For Young People Bill 1996 ("the Bill").[235] Medical practitioners and the Courts will be explicitly informed of a presumption of competence for children aged 12 and over to all medical treatment. Justified on the empirical research outlined above,[236] this standard avoids criticism of an arbitrary age limits and accords with the reality that a psychological assessment cannot be undertaken in every case. It also accords with the standard adopted by the Queensland Law Reform Commission following extensive research into the psychology of children.[237] Also corresponding with the Bill is a presumption that children under 12 are incompetent to consent to their own medical treatment.[238] It is accepted that this standard is open to criticism as reverting to a status-based approach, and it seems desirable that a mechanism be put in place for assessment of a younger child's competence to resolve any disputes.

For a child aged 12 to 15 who consents or refuses to consent to medical treatment of a more serious nature, the presumption of competence remains but due to the more serious threat of harm, an assessment must be made of a child's level of competence. Recognising the practicalities and reality of health care, the above framework postulates that this initial assessment be undertaken by a registered health practitioner. To avoid problems of medical paternalism and subjectivity, this assessment will be governed by objective guidelines laying down clear criteria against which a child's competency is to be determined. This is further bolstered by the independent opinion of another medical practitioner to ensure the subjective beliefs of the first practitioner do not colour their decision. This dual standard will allow a health professional to feel confident in their assessment and treatment (or non-treatment) of a child on that child's consent. Where a child is deemed incompetent after this initial assessment, a third opinion must be sought from a child psychiatrist or psychologist. This ensures that a person specifically skilled in a child's maturity can confirm the health practitioner's opinion avoiding any disputes which may arise.

By providing for an assessment on objective specified criteria a health professional will have certain guidelines and will not fear the consequences nor face the "intolerable dilemma" of making an incorrect assessment. Full medical and psychological evidence will be available to the Court in the event of any dispute, ensuring both the protection of the health professional and the protection of the child from the paternalistic attitudes of the judiciary.

III. COMPETENCE

A final point must be made about the guidelines forming the basis of the test of competency fundamental to the above framework. There seem to be numerous approaches to this question[239] but arguably what is most needed are clear criteria against which the individual child will be assessed. These guidelines must be formulated with input from medical practitioners, paediatricians, child psychologists, child psychiatrists, legal practitioners, social workers and interested members of the public.[240] They must clearly be sufficiently comprehensive to ensure that a child's assessment is appropriately undertaken and will not be the subject of judicial scrutiny where the validity of the child's consent is questioned in Court. It must also be ensured that once deemed competent, a child's decision must be complied with and will not be subverted by the paternalistic practitioner or judge.

In summary, these proposals indicate one method by which a child's right of participation may be brought to bear in the context of medical treatment. This framework is intended to provide security and certainty to the medical profession as well as clear obligations which cannot be ignored. It will ensure that objective formulations of a child's competence are undertaken protecting children against the potentially paternalistic attitudes of family members, practitioners and the judiciary. Granting validity to the choices of the autonomous child will go a long way to recognising the rights of the child in our society.

Part VII — Conclusion

New Zealand health care law currently denies children and young people control over their own treatment decisions under a fragmented statutory scheme which suppresses a child's autonomy. The uncertainty brought by this outdated framework reveals that this law is no longer tenable. As this discussion has illustrated, our conservative medical profession provides treatment to children upon proxy consent, fearful of exposure to professional sanctions. They readily hand decision-making to an omnipotent judiciary who act to prevent a child's physical harm. A child's own right of decision-making is supervened by a legislative perception that children under 16 are just too young to understand.

An adolescent is, however, no longer the dependent and vulnerable being in need of the protection accorded by a statute some thirty years old. Children are more mature, sophisticated and socially aware than in the past. The concept of parental responsibility does not exist for the large numbers of children estranged from their parents, or for those whose own parents have abandoned this role. The psychological impact of rejecting the mature child's right to autonomous choice may arguably prove significantly more detrimental than the prevention of the physical harm our statutory framework preserves.

Whilst our health care law has failed to respond to human development and social change, the weight of international opinion clearly recognises that children deserve the right to participate in decisions which affect them. It is vital that New Zealand now responds. However, as this paper has shown, it will not be enough to simply accommodate the common law Gillick principle within our existing statutory scheme. Since the Gillick decision the English courts have come no further in elucidating the exact nature of this competency test, and its potential to recognise the maturity of the child is arguably precarious.

This paper concludes that the need for clarification of the law relating to medical treatment of children is long overdue. The "artificiality and lack of realism" in the current law must be addressed by a comprehensive framework which recognises the decision-making capacities of the child. Reform must seek a corresponding attitudinal shift from practitioners, the judiciary and the wider community. A framework must provide an objective standard by which competency is assessed to recognise international influences upon children's rights and to promote the principle of autonomy. As a result, the rights of decision-making of the competent child must be subject to neither parental, medical, judicial nor state intervention. Intrinsically personal health treatment decision must be left in the hands of a legally competent child. It is that child alone who must live with the results of the decision.


[*] Lucy Thomson is a solicitor currently practising in Wellington. This paper was awarded the Canterbury Law Review Prize for the best undergraduate Honours paper completed in 2000. It was submitted in January 2000 and is published in its original form.

[1] Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 150 at 186 (per Lord Scarman).

[2] For the purposes of this paper "child" and "young person" are used to refer to individuals aged from birth to seventeen years. These terms are consistent with the Children Young Persons and Their Families Act 1989 where "child" is defined as a boy or girl under the age of 14 years (s 2(1)), and "young person" means a boy or girl of or over the age of 14 years but under 17 years (s 2(1). These age classifications are also consistent with current legislation and medical orthodoxy. (The United Nations Convention on the Rights of the Child refers to a "child" as an individual from birth to eighteen years (Part 1, Article 1) whilst the age of majority in New Zealand is 20 years. (Age of Majority Act 1970 (NZ), ss 4(1) and (2))).

[3] The terms "medical treatment" and "health care procedures" are used in this paper to cover the full spectrum of medical and surgical procedures normally associated with a doctor/patient relationship. This paper is, however, specifically focused on treatments which are more serious in nature, because in this context the issue of a child's own capacity arises. Procedures of a minor nature typically cause little controversy and children are increasingly allowed to participate in such treatment.

[4] The terms "competence" and "capacity" are used interchangeably to refer to the capability of a child or young person to make a rational, informed choice about accepting or refusing the treatment being offered. This description accords with terminology adopted by the Ministry of Health in Consent in Child and Youth Health - Information for Practitioners (Wellington, December 1998), p 2.

[5] The terms "health care provider", "medical practitioner", and "practitioner" are used interchangeably to refer broadly to any person who is involved in the treatment of health related concerns. Most commonly references will be to registered health professionals. However, the same principles are generally applicable to treatment by nurses, dentists, counsellors, psychologists or any person holding out as providing health services. This extended definition accords with ss3-4 of the Health and Disability Commissioner Act 1994 which prescribe a comprehensive list of people and institutions to whom the term "health care provider" applies.

[6] D Cole, Medical Practice in New Zealand: A guide to Doctors Entering Practice (Wellington, Medical Council of New Zealand, 1995), p12 describes informed consent "[as] one of the keystones of patients' rights".

[7] The modern obligation to obtain an individual's consent was stated unequivocally in the 1947 Nuremberg Code:

"The voluntary consent of the human subject is absolutely essential.

This means that the person involved should have the legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress or other ulterior form of constraint and coercion, and should have sufficient knowledge and comprehension of the elements of the subject matter involved so as to enable him to make an understanding and enlightened decision"

These statements, limited to non-therapeutic research, were extended by the World Medical Association in 1964 with the publication of a code of ethics known as the 1964 Helsinki Declaration. Here it was observed: II. Clinical Research Combined with Professional Care

1....If at all possible, consistent with patient psychology, the doctor should obtain the patient's freely given consent after the patient has been given a full explanation. These origins were observed in Judge S Cartwright, The Report of the Committee of Inquiry into Allegations Concerning the Treatment of Cervical Cancer at National Women's Hospital and into Other Related Matters (Auckland, Government Print, 1988).

[8] L Skene in Law and Medical Practice: Rights, Duties, Claims and Defences (Sydney, Butterworths, 1998) describes the notions of individual liberty and minimal state intervention as fundamental tenets of liberal theory which have gained significance as societies have become more egalitarian. This liberal theory encourages respect for individual freedom and the rights of everyone to make their own choices.

[9] Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18; [1992] 4 All ER 649 (CA) at 652-653.

[10] This scheme originated under the Accident Compensation Act 1972. The scope of the Act was sufficiently wide to include claims for a failure to obtain informed consent under the term "medical misadventure". Common law claims for ordinary damages were barred resulting in the exact scope of informed consent remaining untested. This issue is discussed further below.

[11] Judge S Cartwright The Report of the Committee of Inquiry into Allegations Concerning the Treatment of Cervical Cancer at National Women 's Hospital and into Other Related Matters (Auckland, Government Print, 1988), p 136.

[12] New Zealand Health Council Working Party on Informed Consent: June 1989

[13] This demands that the presence of information on the nature, effects, risks and benefits of the treatment and its alternatives be given to the client; that the client must understand this information and be competent to make a decision; and that the consent must be voluntary. Working Party on Informed Consent, Principles and Guidelines for Informed Choice and Consent for all Healthcare Providers and Planners (Wellington, Department of Health, 1991), p 25.

[14] Medical Council of New Zealand, A Statement for the Medical Profession on Information and Consent (Wellington, June 1993), p20:

"Medical consent means the voluntary, uncoerced decision made by a legally competent or autonomous person on the basis of adequate information and discussion. This contrasts with the rejection of a proposed course of action; in short it is a choice."

[15] In the above publication, the New Zealand Medical Council recognises that informed consent is a professional practice rather than a legal right in New Zealand: p 15.

[16] The clauses forming the basis of the consumer rights protection accorded by the Code of Health and Disability Consumers' Rights 1996 are included as Appendix I at the conclusion of this paper. The genesis of the Code lies in recommendations of Judge Cartwright in The Report of the Committee of Inquiry into Allegations Concerning the Treatment of Cervical Cancer at National Women's Hospital and into Other Related Matters (Auckland, Government Print, 1988). The adoption of the Health and Disability Commissioner Act 1994 provided for the appointment of a Health Commissioner whose task was to prepare a draft Code (ss14(1)(a),19). Responsibility for the final wording of the Code lay with the Minister of Health (s75). The Code was enacted as the Health and Disability Commissioner (Code of Health and Disability Consumers' Rights) Regulations 1996 and came into force on 1 July 1996. As a regulation, the Code is subject to other legislation and the common law. However, it is unique in that its own regulatory regime means that the obligations on service providers cannot be ignored.

[17] Right 7 (1): "Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent, except where any enactment, or the common law, or any other provision of this Code prescribes otherwise."

[18] Consent in Child and Youth Health - Information for Practitioners (Ministry of Health, Wellington, NZ Law Society, December 1998). These sentiments are also stated by the Working Party on Informed Consent in Principles and Guidelines for Informed Choice and Consent for all Healthcare Providers and Planners, (Wellington, Department of Health, 1991), p 25; Informed Consent to Health Care saying yes saying no asking why ( A Consumers Guide, Women's Health Information Service, pamphlet 1); and in the following papers from the Consent and Child Health Workshop Wellington, August 6 1998: Ron Paterson, Chief Adviser, Services, Ministry of Health "Legal and ethical dilemmas" and Annie Fraser, Legal Manager, Office of the Health and Disability Commissioner "The Informed Consent Process and the Application to the Code to Children".

[19] In this context the term "competence" is used to refer to legal "status" that is being legally recognised as being able to make a rational, informed choice about accepting or refusing the treatment offered.

[20] Section 2.

[21] I Kennedy and A Grubb in "Consent to Treatment: the Competent Patient" in Principles of Medical Law (London, Butterworths, I Kennedy and A Grubb eds,1998), p 176.

[22] [1992] EWCA Civ 18; [1992] 4 All ER 649.

[23] The English Court of Appeal determined several factors which a doctor ought to consider in assessing whether a patient has made a truly autonomous decision. These included

"the strength of will of a patient. One who is very tired, in pain or depressed will be much less able to resist having his will overborne...[and] the relationship of the 'persuader, to the patient may be of crucial importance. The influence of parents on their children or of one spouse on the other can be,...much stronger than would be the case in other relationships...the patient may not mean what he says." Ibid at 662 (per Lord Donaldson MR).

[24] The principle of consent can be traced to early in the century (for example in the famous pronouncements of Justice Cardozo in Scholendorff v Society of New York Hospitals (1914) 211 NY 125) the notion that consent ought to be informed is of more recent origin and is associated with North American authorities. The right to be informed now forms an essential basis for the modern doctrine as the right to choose implicitly carries with it the right to comprehend the information necessary to make this choice. There is a lack of case law in New Zealand, and overseas there is debate about the extent to which doctors are bound to disclose information to patients. However, the USA (Canterbury v Spence 464 F. 2d 772 (DC 1972); Cobbs v Grant 502 p.2d 1 (Cal 1972)); Canada (Reibl v Hughes (1980)114 DLR (3d) 1); England (Sidaway v The Board of Governors of the Bethlehem Royal Hospital and the Maudsley Hospital [1984] 1 All ER 1018); and most recently Australia (Rogers v Whitaker [1992] HCA 58; (1992) 109 ALR 625) have all found a negligence test appropriate to strike the balance between encouraging disclosure and imposing a duty upon doctors which can be met in practice. The appropriate standard used to determine the extent of information disclosure has also been the subject of contention. In her report Judge Cartwright observed that the standard in New Zealand remained largely untested as a result of New Zealand's Accident Compensation scheme. The report drew a distinction between the patient-centered standard set by the Australian and North American Courts, and the English standard set by Bolam v Friern Hospital Management [1957] 2 All ER 118 and Sidaway which measured disclosure by reference to whether an individual doctor acted in accordance with a practice acceptable as proper by a body of responsible and skilled medical opinion The report (p 136) considered the Australian authority would be more likely to be followed in New Zealand, but this approach was not made clear until the adoption of the patient-based standard in the Code.

[25] Right 6(1): Right to be Fully Informed.

[26] Right 6(2): Right to be Fully Informed.

[27] This age of consent in New Zealand is adopted due to the terminology of the Guardianship Act 1968 (s25(1)).

[28] The position of the child in the eighteenth century is clearly illustrated by observations contained in Sir William Blackstone Commentaries on the Laws of England (London, Cavendish, 1765, vol 1):

"The power of a parent by our English laws is. . . still sufficient to keep the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner; for this is for the benefit of his education....The duties of children to their parents arise from a principle of natural justice arid retribution....we naturally owe subjection and obedience during our minority, and honour and reverence ever after;"

The dominance of the father is also apparent in the nineteenth century. In Re Agar-Ellis, Agar-Ellis v Lascelles (1883) 24 Ch D 317, 53 LJ Ch 10, 50 LT 161, 32 WR 1, the English Court of Appeal observed: "The rights of the father are sacred duties because his duties are sacred duties" (per Brett MR); and "The Court must not be tempted to interfere with the natural order and course of family life, the very basis of which is the authority of the father." (per Bowen LJ). Both examples are cited in B Hoggett et al, The Family, Law and Society: Cases and Materials (London, Butterworths, 4 ed, 1996), p 408-410.

[29] A parent is customarily the guardian of the child by virtue of s6 Guardianship Act 1968.

[30] Section 3: "Definition of custody and guardianship": For the purposes of this Act -

"Custody" means the right to possession and care of a child

"Guardianship" means the custody of a child (except in the case of a testamentary guardian and subject to any custody order made by the Court) and the right of control over the upbringing of a child, and includes all rights, powers and duties in respect of the person and upbringing of a child that were at the commencement of this Act vested by any enactment or rule of law in the sole guardian of a child; and "guardian" has a corresponding meaning.

[31] This view is affirmed by statements of our Court of Appeal in Re J (An Infant): B and B v D-G of Social Welfare [1996] 2 NZLR 134 at 145: "The upbringing of children extends to making decisions for them as to health and medical treatment. That is a right long recognised under the common law in any event: Gillick v West Norfolk and Wishbech AHA."

[32] M McDowell, "Supervening parental rights: religion and the refusal of consent to a child's medical treatment" Butterworths Family Law Journal, March 1998, 233 at 237.

[33] Section 25(3)(a) Guardianship Act

[34] This was the clear intention of Parliament when the legislation was enacted: NZPD, Introduction 10621064, 6 August 1968, and 3390-3391, 26 November 1968. This provision is congruent with s8(1) of the Family Law Reform Act 1969 (UK). It reads:

"The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would be trespass to his person, shall be effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian."

[35] D Collins in Medical Law in New Zealand (Wellington, Brooker and Friend, 1992) at 97 describes the term "any medical, surgical or dental procedure" as encompassing the full spectrum of procedures normally associated with a doctor/patient relationship including all forms of treatment, including curative and preventative as well as other diagnostic procedures that might not ordinarily be considered forms of treatment.

[36] Section 25(2) provides an exception allowing consent or refusal by married minors to have effect as if they were of full age. A minor cannot legally marry in New Zealand under the age of sixteen (s17 Marriage Act 1955) but this section does allow minors married overseas full autonomy.

[37] For example in D Cole, Medical Practice in New Zealand: A Guide to Doctors Entering Practice (Wellington, Medical Council of New Zealand, 1995) at Ch 4 (p 21): "The Right to Information and Consent 4.8(c) SPECIAL SITUATIONS :Children and Young People -

NZ's Guardianship Act 1968, in s25, provides that the consent of any person 16 years or more to a medical, surgical or dental procedure will be valid, as if the person were of full age. At less than that age, with special exceptions...consent is required from a parent or a guardian."

[38] High Court, Auckland, 11.7.1996, M812196.

[39] The doctrine of emergency is prescribed both by the common law and the Crimes Act 1961 although specific legislative or judicial definition of the term has not yet been determined in New Zealand. The above description is drawn from L Skene Law and Medical Practice Rights, Duties, Claims and Defences (Sydney, Butterworths, 1998), p 82. Skene notes that this doctrine "has been strictly construed and should not be relied upon lightly" and that the procedure must be essential to preserve the patient's life or health rather than merely convenient: Murray v McMurchy [1949] 2 DLR 442.

[40] There is some debate over whether emergency and necessity constitute separate defences with the terms often being used interchangeably. The modern approach is to regard the terms with slightly different bases and to construe the doctrine of necessity more broadly than emergency.

A distinction is adopted in this paper in accordance with the views of the Australian High Court in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 625, 109 AER 625 at 632.

[41] The defence comprises of two elements: (1) The defendant must have had a reasonable and honest belief in the need to act in this way to avert the harm (and presumably there is no better means of doing it) and (2) The harm to be avoided must be proportionately more severe than that which is caused. (M Wallace and S Johnson Health Care and the Law (Wellington, Brookers, 1995).

[42] The principle of necessity has recently been endorsed in England by the House of Lords in Re F (mental patient: sterilisation) [1991] UKHL 1; [1990] 2 AC 1; [1989] 2 All ER 545 at 565-566: where it is "not practicable to communicate with the assisted person, but also...the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person." This notion of the "best interests" of the patient again causes confusion as to the limits and scope of these defences. In recent English case law this "best interests" principle has been suggested as a separate justification from the doctrine of necessity. This allows a practitioner to treat a patient who cannot consent, provided that the doctor is acting in the patient's best interests and in accordance with a responsible body of medical opinion skilled in the particular field concerned (Re F (mental patient: sterilisation) [1991] UKHL 1; [1990] 2 AC 1, [1989] 2 All ER 545; Re W (a minor) (consent to medical treatment) [1993] 1 FLR 381, [1992] 4 All ER 627; Re H (mental patient) [1993] 1 FLR 28. The extent to which this "best interests" principle will be adopted in New Zealand is unclear and is beyond the scope of this paper.

[43] Section 126B Health Act 1956. The administration of blood transfusions to persons under the age of twenty without consent is sanctioned by requiring leave of a High Court Judge before civil or criminal proceedings can be brought (s126B(2)). This statutory defence lists three narrow criteria (relating to reasonableness of the medical practitioner's opinion) which must be satisfied before leave is granted (s126B(3)). To date there has been no reported case in which such leave has been sought.

[44] Section 125 Health Act 1956.

[45] For example psychiatric treatment may be compelled under Mental Health (Compulsory Assessment and Treatment) Act 1992. This paper concerns the rights of the competent child who is otherwise able to make his or her own decisions. The rights of a child without full mental capacity will not be canvassed although it is noted that in the leading decision of the Australian High Court (Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 (Marions Case), the judges observed that the fact of intellectual disability did not automatically denote an inability to give a valid consent: "Of course, the fact that a child suffers an intellectual disability makes consideration of capacity a different matter. The age at which intellectually disabled children can consent will be higher than for children within the normal range of abilities....[However] there is no reason to assume that all disabled children are incapable of giving consent to treatment." (at 401).

[46] For example, under ss 49-52 (inclusive) Children, Young Persons and Their Families Act 1989 the Family Court may order medical examinations if it is satisfied:

That there are reasonable grounds for suspecting that a child or young person is suffering ill treatment, abuse, neglect, deprivation, or serious harm; and

That it is expedient that a medical examination of that child or young person be carried out for the purpose of determining whether that suspicion is well-founded. ( s49(1)). The Health Act 1956 and Tuberculosis Act 1994 also contain provisions for compulsory examination and treatment.

[47] A child may be placed under the guardianship of the Court (s 10A-E Guardianship Act 1968); under the Court's parens patriae jurisdiction (s17 Judicature Act 1908); or under the guardianship of the Director-General of Social Welfare or other designated persons under a care and protection order (s110 Children, Young Persons and Their Families Act 1989).

[48] DB Collins, Medical Law in New Zealand (Wellington, Brooker and Friend, 1992), p 75.

[49] Section 25A Guardianship Act 1968.

[50] Section 3 Contraception, Sterilisation and Abortion Act 1977 repealed by s 2 Contraception, Sterilisation and Abortion Amendment Act 1990.

[51] The New Zealand High Court has two primary interventionist powers; the parens patriae jurisdiction and the statutory guardianship jurisdiction (often termed "wardship"). Parens patriae is an ancient prerogative jurisdiction residing in the higher English Courts for subjects who due to disability are unable to look after themselves or their property. This inherent jurisdiction is preserved by s16 of the Judicature Act 1908 and has been confirmed by the Court of Appeal in Pallin v Department: of Social Welfare [1983] NZLR 266 at 272. The parens patriae jurisdiction is preferred where consent is sought to a specific single treatment, Re Norma [1992] NZFLR 445 at 450 (per Tompkins J). Section 10(A) - 10(E) of the Guardianship Act 1968 empowers the High Court and Family Court (by legislative amendment under s 3 of the Guardianship Amendment Act 1998) to order that a child be placed under the guardianship of the Court and may appoint any person to be the agent of the Court, either generally or for a particular purpose. This jurisdiction is more likely to be invoked where a lengthy and ongoing series of treatments is envisaged (Re Norma [1992] NZFLR 445 at 450 (per Tompkins J)). However, the order will not be made lightly and should only be invoked "where the child's life or well-being is in serious jeopardy and there is no other reasonable medical or therapeutic treatment available". (Re J (An Infant) [1995] 3 NZLR 73 at 88 (per Ellis J).

[52] Re J (An Infant): B and B v D-G of Social Welfare [1996] 2 NZLR 134 at 145.

[53] The controversy currently surrounding the use of the Court's interventionist powers is beginning to erode traditional acceptance of medical opinion as determinative of a child's best interests. Considerations including the relevance of parental objections are evident in England in Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 All ER 112 and in the much publicised decision of the Family Court in Dunedin concerning Liam Williams-Holloway, Health Care Otago Limited v Williams-Holloway [1999] NZFLR 792, [1999] NZFLR 804. In these latter decisions Liam was placed under the custody of the Director-General of Social Welfare for the administration of chemotherapy. Liam's parents refused conventional medical treatment and his whereabouts remained unknown prompting the Court to reassess its decision. In an interim decision (which currently stands) Blaikie J suspended the treatment order in the hope this would assist Liam's parents in considering their respective positions.

[54] Op cit n 52. Although Jehovah's Witness readily seek other medical care, the transfusion of blood is prohibited due to their religious convictions. (Genesis 9:4; Leviticus 17:10; Acts 15:28,29). The non-consensual administration of blood transfusions is described as the "moral equivalent of rape. In their minds transfusion therapy is not a minimal bodily invasion but a gross physical and spiritual violation." It is the blood itself which is regarded as objectionable therefore consent given by the court is no less emotionally devastating and damaging to the child than consent given by parents. S Papps "Ex Parte orders for medical intervention on Jehovah's Witnesses: the risk of injustice" Butterworths Family Law Journal Dec 1994, 136; "Parental beliefs and medical treatment of children: a response" Butterworths Family Law Journal June 1995, 228.

[55] Section 126B Health Act 1956: op cit n 43. In the High Court decision in Re CL [1994] NZFLR 352 at 357 Robertson J observed that he could understand "the reluctance of doctors to place themselves in a position in which they could become embroiled in litigation as to whether leave should be granted...the desire of doctors to be secure from such a possibility is certainly not unreasonable. It does not help a doctor to tell him that at the end of a Court proceeding that leave will almost certainly be refused. It ignores the trauma, the drain and the demand of litigation." His Honour then affirmed the guidance of Williamson J in Re V [1993] NZFLR 369 at 377: "An application to the Court is still a responsible step when consent is not given by parents and there is sufficient time to seek authority."

[56] "Health Care Law: Consent to medical treatment of a child" [1996] New Zealand Law Review, 296.

[57] Re J (An Infant): Director-General of Social Welfare v B and B [1995] 3 NZLR 73 at 86.

[58] Re J (An Infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134 (er Richardson P, Gault, McKay, Henry and Temm JJ; judgment of the Court delivered by Gault J).

[59] The complex interaction of legislation and the common law canvassed by the Court of Appeal will not be discussed in depth. The focus of this paper concerns limitations of consent of a child by their guardian(s) or by the state, rather than the limitations on parental consent by the state.

[60] Re J (An Infant): Director-General of Social Welfare v B and B [1995] 3 NZLR 73 at 77 (per Ellis J). An interim order making J a ward of the Court appointed J's parents as general agents of the Court in all respects except the giving of consent to medical treatment involving a blood transfusion.

[61] Op cit n 58 at 146.

[62] This finding to allow a Court's consent under s25(3)(a) rejected arguments that s25(3)(a) was limited to natural parents and that the section should not be construed in situations where there has been refusal by the child's natural guardians. The Court found that by providing for consent, s25(3)(a) clearly contemplated a refusal of consent. Ibid at 141.

[63] Section 23: Welfare of the child paramount -

(1) In any proceeding where any matter relating to the custody or guardianship of or access to a child,...is in question, the Court shall regard the welfare of the child as the first and paramount consideration.

[64] High Court, Auckland, 11.7.1996, M812/96.

[65] Ibid at 5.

[66] Ibid at 6. In a short affidavit to the Court Joseph deposed: "I do not want to have the operation on my right eye because I believe that God is curing my right eye. I believe that this miracle has already begun. Since I was examined by Doctor Hadden on 4 July 1996, the vision in my right eye has improved. I believe that this improvement will continue and therefore there is no need for me to have an operation. I have had explained to me that the doctors say I will go blind if I do not have the operation. I understand this but believe that God will cure me."

[67] It was argued that s11 of the New Zealand Bill of Rights Act 1990 applied. This provides that "every person has the right to refuse to undergo any medical treatment."

[68] Op cit n 64 at 7.

[69] [1996] NZFLR 670.

[70] Ibid at 671.

[71] Re R (A Minor) (Wardship: Consent to Medical Treatment) [1991] 4 All ER 177.

[72] Consent forms a necessary but not a sufficient condition for patients to be treated. English authorities are clear that a patient cannot compel a practitioner to provide treatment that, in the practitioner's opinion is not in the patients best interests, for example Re J (A minor) (Wardship: Medical Treatment) [1992] 4 All ER 614; Re R (a Minor) (Wardship. Medical Treatment) [1991] 4 All ER 177.

[73] Schloendorff v Society^ of New York Hospital (19l4) 105 NE 92 at 93 (CA).

[74] "Righting a Child's Right to Refuse Medical Treatment: Section 11 of the New Zealand Bill of Rights Act and the Gillick competent child" Otago Law Review (1992) Vol 7 No 4, 578 at 584.

[75] Section 196 Crimes Act 1961.

[76] Section 190 Crimes Act 1961.

[77] D B Collins Medical Law in New Zealand (Wellington, Brooker and Friend, 1992), p 67.

[78] Ibid. Collins gives an example of such an abuse of position where a doctor sexually abuses his patient by performing unnecessary vaginal examinations without consent.

[79] The Law of Torts in New Zealand (Wellington, Butterworths,Todd ed,1997),p 103. This tort provides remedies not only for actual bodily harm but also for any trivial contact that is an affront to human dignity.

[80] This bar was first provided by s5 Accident Compensation Act 1972, and maintained by s27 Accident Compensation Act 1982 and s14 Accident Rehabilitation and Compensation Insurance Act 1992.

[81] "Medical misadventure" is now comprehensively defined under s5(6) of the 1992 Act.

[82] Taylor v Beere [1982] NZCA 15; [1982] 1 NZLR 81.

[83] Greene v Matheson [1989] NZCA 195; [1989] 3 NZLR 564.

[84] Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulation 1996.

[85] Health and Disability Commissioner Act 1994, s 52(2).

[86] Ibid, s73.

[87] Op cit n 84. Right 10 enshrines the consumer's "Right to Complain".

[88] Part IV of the Health and Disability Commissioner Act 1994 contains detailed provisions: Complaints (ss31-34) and Investigations by the Commissioner (ss35-40).

[89] Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulation 1996 Right 10(2)(c)(ii), and Health and Disability Commissioner Act 1994 s31. It is also noted that the Commissioner may commence proceedings on his or her own initiative, s35(2).

[90] It is noted that if following an investigation the Commissioner is of the opinion that the conduct in question was in breach of the Code, the Commissioner may report "the Commissioner's opinion, with reasons" to the provider, a health professional body, or to the Minister of Health as he or she sees fit. (Proceedings of the Commissioner ss 35-40) The Commissioner's role is not however, to grant a remedy or institute proceedings but he or she must refer the matter to the Director of Proceedings who decides whether to institute proceedings (s15 and s 49).

[91] Health and Disability Commissioner Act 1994, s54(1)(a).

[92] Ibid: s54(1)(b)-(e).

[93] Ibid: s57(1).

[94] Ibid: s49(1).

[95] D Cole, Medical Practice in New Zealand: A guide to Doctors Entering Practice (Wellington, Medical Council of New Zealand, 1995), p 4.

[96] Ibid at 8. This standard must be no less than that skill, knowledge and understanding that could be reasonably expected of a doctor of that experience and training.

[97] S Papps "'Parental beliefs and medical treatment of children': a response" Butterworths Family Law Journal, June 1995, 228 at 229-230 adopting statements in the American authority Andrews v Ballard 498 F Supp 1038 (SD Tex 1980).

[98] J Paiget and B Inhelder, The Psychology of the Child (New York, Basic Books,1969). Paiget's four phases of child development have proved a dominant influence in child psychology which have been referred to by a number of authors. However, more recently his work has been criticised particularly with the development of a new discipline termed "the sociology of childhood." As Prout and Jaines (1990) state of Paiget's theory, "within such a conceptual scheme children are marginalised beings awaiting temporal passage, through the acquisition of cognitive skills, into the social world of adults."(p22). The sociology approach is described by Morrow and Richards (1996): "this involves moving on from the narrow focus of socialisation and child development (the study of what children will become), to a sociology which attempts to take children seriously as they experience their lives in the here-and-now as children."(p92). These authors are discussed by N Taylor and RM Henaghan "Taking Children's Views Seriously" Childrenz, Vol 1 No 1 1997, 11at 13.

[99] L Wiethorn "Children's Capacities for Participation in Treatment Decision-Making'' in Emerging Issues in Child Psychiatry and the Law (1985), p 22 at 29-30 as cited in Consent to Medical Treatment of Young People (Discussion Paper WE, 44 Queensland Law Reform Commission May 1995), p 62.

[100] For example: RH Nicholson, Medical Research with Children. Ethics, Law and Practice (1986); L Wiethorn and S Campbell "The Competency of Children and to Make Informed Treatment Decisions" (1983) 9 Child Development 285 as cited by L Bunney "The Capacity of Competent Minors to Consent to and Refuse Medical Treatment" Journal of Law and Medicine Vol 5 August 1997 52 at 60.

[101] Section 11(b) Adoption Act l955; s5(d) Children Young Persons and Their Families Act 1989; s23(2) Guardianship Act 1968; s13(l)(d) Guardianship Amendment Act 1991 (Hague Convention); s9(3) Domestic Violence Act 1995; and s16B(5)(g) Guardianship Amendment Act l995 (Violence in Custody/Access).

[102] Crimes Act 1961, s22(2); The Children Young Persons and Their Families Act 1989, s272(1).

[103] Crimes Act 1961, s22(1); The Children Young Persons and Their Families Act 1989, s272(1).

[104] Op cit nn 50, 51.

[105] Consent in Child and Youth Health - Information for Practitioners (Ministry of Health, Wellington, NZ Law Society, December 1998), p2.

[106] For example by providing access to information.

[107] L Bunney "The Capacity of Competent Minors to Consent to and Refuse Medical Treatment" Journal of Law and Medicine Vol 5 August 1997, 52 at 62.

[108] Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1992] 4 All ER 627, at 633 (per Lord Donaldson of Lymington MR).

[109] For example Re J (An Infant): B and B v Director-General of Social Welfare [1995] 3 NZLR 73, [1996] 2 NZLR 134. In both decisions the Courts discuss the totality of factors to be considered in assessing a child's welfare, but ultimately state intervention has been justified on the physical welfare of the child.

[110] L Bunney, "The Capacity of Competent Minors to Consent to and Refuse Medical Treatment" Journal of Law and Medicine Vol 5 August 1997, 52 at 63. Bunney argues that the requirement of beneficence in relation to a competent person would require that he or she be provided only with sufficient information to make an informed decision. She argues the best interests principle may limit a minor's decision only to the extent that it requires a decision to be made assessing the risks, nature, benefits and alternatives of a proposed course of conduct.

[111] [1985] 3 A1I ER 402; [1986] AC 150.

[112] WR Atkin, "Parents and Children: Mrs Gillick in the House of Lords" [1986] NZLJ 90 at 93.

[113] [1986] AC 150 at 187.

[114] [1986] AC 150 at 172 (per Lord Fraser), citing with approval the dicta of Lord Denning MR in Hewer v Bryant [1970] 1 QB 150 at 189: "the legal right of a parent to the custody of a child ends at the 18th birthday: and even up till then, it is a dwindling right which the Courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice." These statements of their Lordships have been accepted in other jurisdictions. Of particular note is the decision of the Australian High Court in Secretary, Department of Health and Community Services v J:WB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218 where Justice Brennan and Justice McHugh both followed a:Gillick type formulation of parental power (at 278 and 314-315 respectively).

[115] A Grubb, Choices and Decisions in Health Care (New York, Chichester, Wiley, 1993), p 59.

[116] WR Atkin, "Parents and Children: Mrs Gillick in the House of Lords" [1986] NZLJ 90 at 100.

[117] Judicial comment has adopted Gillick to affirm that parental rights were "never absolute": Re J (An Infant): B and B v Director General of Social Welfare [1996] 2 NZLR 134 at 145 (CA). The judgment was also followed in Re J (An Infant): Director-General of Social Welfare v B and B [1995] 3 NZLR 73 at 86-87 (HC) to the extent that emergency treatment could be carried out without a parent's consent.

[118] This observation was made by the Ministry of Health, Consent in Child and Youth Health: Information for Practitioners ( Wellington, NZ Law Society, December 1998), p 13.

[119] Children have more recently been included in general declarations in relation to the rights of all persons. For example the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (Articles 23 and 24) and the International Covenant on Economic, Social and Cultural Rights (Article 10).

[120] The Convention was adopted without vote by the General Assembly of the United Nations on 20 November 1989 (45th session) as a culmination of ten years of negotiation and drafting from a 1979 Polish initiative. It now has almost universal accession.

[121] These rights include civil and political, social, economic, cultural, recreational and humanitarian rights:A Bainham Children: The Modern Law (Bristol, Family Law, 2 ed, 1998), p 57.

[122] Termed the "three P's" as classified by Thomas Hammarberg, "The UN Convention on the Rights of the Child - and How to Make it Work" (1990) 12 Human Rights Quarterly, pp 97-105 as cited by J S Davidson, "The United Nations Convention on the Rights of the Child" Family Law Bulletin, Nov 1990, Vol. 2 Part 10, 121 at 122.

[123] United Nations Convention on the Rights of the Child, (20 November 1989, UKTS 44 (1992); Cm 1668), Article 12 (1).

[124] GW Austin, "Children's Rights in New Zealand Law and Society" (1995) 25 VUWLR 249.

[125] The objects of the Child Support Act 1991 include "to affirm the right of children to be maintained by their parents".

The Children, Young Persons and Their Families Act 1989 also provides that children and young persons must be protected from harm, their rights upheld, and their welfare promoted: s13(a).

[126] Op cit n 124 at 269. In his analysis Austin notes that neither of the above provisions amount to an unequivocal protection of children's rights. Both provisions must be viewed in context and in practice are constrained by other principles in the Act, competing legislative policies or detailed mechanistic provisions (see, for example, Andrews v Andrews (1993) 11 FRNZ 250, [1994] NZFLR 39).

[127] Tavita v Minister of Immigration [1994] 2 NZLR 257.

[128] It is noted that in H v F (1993) 10 FRNZ 486 at 499, Fraser J determined that the terms of the United Nations Convention on the Rights of the Child provided a legitimate source of "the generally accepted standards of society" in New Zealand. This view is taken further by Judge Von Dadelszen in Re the W Children (1994) 12 FRNZ 548 at 558 where, relying on Tavita, he stated "that when the Family Court is required to exercise its discretion...it is legitimate, even essential, to fall back" on the United Nations Convention.

[129] The Commissioner is appointed under Part IX of the Children, Young Persons and Their Families Act 1989. New Zealand also has a Ministry of Youth Affairs which is concerned with young people aged between 12 and 25 years.

[130] Section 12 of this Act contains the Act's only age restriction, on the right to vote.

[131] Op cit n 124. Austin's analysis suggests the notion of the Treaty of Waitangi as a source of rights is an evolving, yet seemingly unorthodox idea. He argues this is due to promotion of child rights by iwi self-determination rather than through an individual's relationship with the state (as noted above). He emphasises, however, the importance of not overgeneralising the extent to which wider kin networks are a source of child's rights protection and the continued appropriateness of state intervention to protect children from potential harm within these networks.

[132] To date there is no New Zealand authority which explicitly recognises the validity of the "Gillick principle" of competency. As described above (op cit n 117) the decision has had limited application in Re J (An Infant) [1996] 2 N7LR 134 at 145 (CA) and in Re J (An Infant) [1995] 3 NZLR 73 at 86 .

[133] Contrary to s28(1) of the Sexual Offences Act 1956 (UK) which provides (as material), "It is an offence for a person to cause or encourage...the commission of unlawful sexual intercourse with .. .a girl under the age of sixteen for whom he is responsible."

[134] Section 6(1) of the Sexual Offences Act 1956 (UK) which provides "It is an offence...for a man to have unlawful sexual intercourse with a girl under the age of sixteen".

[135] Gillick v West Norfolk and Wisbech Area Health Authority [ 1984] 1 QE 581.

[136] Ibid at 595. Contraceptives were held to be "not so much 'the instrument for a crime or anything essential to its commission' but a palliative against the consequences of the crime".

[137] Ibid at 595.

"In the absence of binding authority, the position seems to me to be as follows: the fact that a child is under the age of 16 does not mean automatically that she cannot give consent to any treatment. Whether or not the child is capable of giving the necessary consent will depend upon the child's maturity and understanding and the nature of the consent which is required.... If the child is not capable of giving consent then her parents can do so on the child's behalf. If what is involved is some treatment of a minor nature, and the child is of normal intelligence and approaching 16, it will be easier to show that the child is capable of giving the necessary consent; otherwise if the implications of the treatment are long-term."

[138] Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] 1 AC 112.

[139] Op cit n 34.

[140] Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1985] 3 All ER 402; [1986] AC 150 (per Lord Fraser of Tullybelton, Lord Scarman, Lord Bridge of Harwich; Lord Brandon of Oakbrook and Lord Templeman dissenting).

[141] Ibid at 187 (per Lord Scarman). It is noted that Lord Fraser adopts the terminology of dwindling parental rights following the judgment of Lord Denning in Hewer v Bryant which is less strong than the termination of parental rights stated by Lord Scarman. Lord Fraser ([1986] 1 AC 150 at 171) further commented that the degree of parental control actually exercised over a child does, in practice, vary considerably according to his or her understanding and intelligence. J Eeklaar "Eclipse of Parental Rights" [1986] LQR 4 5 at 6-7 interprets this latter statement as indicating that parental rights are legally extinguished when a child acquires the requisite capacity.

[142] [1986] AC 150 at 188-189:

"As a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law."

[143] [1986] AC 150 at 184.

[144] [1986] AC 150 at 169. This conclusion was reached on the basis that minors can enter contracts (within limits), sue and be sued, give evidence on oath and can consent to sexual intercourse to prevent the assailant being guilty of rape (R v Howard [1965] 3 All ER 684).

[145] [1986] AC 150 at 174, where Lord Fraser observed:

"The only practicable course is, in my opinion, to entrust the doctor with a discretion to act in accordance with his view of what is best in the interests of the girl who is his patient. He should...always seek to persuade her to tell her parents that she is seeking contraceptive advice...But there may well be cases...where the girl refuses either to tell her parents herself or to permit the doctor to do so and in such cases the doctor will, in my opinion, be justified in proceeding without the parent's consent or even knowledge provided he is satisfied on the following matters:

(1) that the girl (although under the age of 16 years of age) will understand his advice;

(2) that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;

(3) that she is very likely to begin or continue having sexual intercourse with or without contraceptive treatment;

(4) that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;

(5) that her best interests require him to give her contraceptive advice, treatment or both without the parental consent."

[146] Ibid.

[147] I Kennedy and A Grubb Principles of Medical Law (Oxford, Oxford University Press, 1998), p 208 describe these two terms as the "conventional shorthand" to refer to this competence test.

[148] For example in Australia, in all states except New South Wales and South Australia, consent to medical treatment is regulated almost entirely by the common law. The Australian High Court summarised this position in Secretary, Department of Health & Community Services v JWB (Marion's Case) [1992] HCA 15; 1992 175 CLR 218 at 237 (per McHugh J):

"The common law in Australia has been uncertain as to whether minors under 16 can consent to medical treatment in any circumstances. However the recent House of Lords decision Gillick... is of persuasive authority. The proposition endorsed by the majority...was that parental power to consent to medical treatment on behalf of a child diminishes gradually as the child's capacities and maturity grow and that this rate of development depends on the individual child....This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology. It should be followed in this country as part of the common law."

[149] Most notably, the Children Act 1989 has adopted a Gillick test of maturity to be used in s10(8);

s22(4)(a)and (5)(a); s 43(8) and s44(7).

[150] Re R (A Minor) (Wardship: Consent to Medical Treatment) [1991] 4 All ER 177.

[151] Re W (A Minor) (Medical Treatment) [1992] All ER 627.

[152] J Murphy "W(h)ither Adolescent Autonomy?" [1992] JSWFL 529 at 542 as cited by M Brazier and C Bridge in "Coercion or caring: analysing adolescent autonomy" 1996 Legal Studies 84 at 84.

[153] Re R (A Minor) (Wardship: Consent to Medical Treatment) [1991] 4 All ER 177 at 187 (per Lord Donaldson MR).

[154] Ibid at 185-186:

"[Consent] is merely a key which unlocks the door. Furthermore, whilst in the case of an adult of full capacity there will usually only be one keyholder, namely the patient, in the ordinary family unit where a young child is the patient there will be two keyholders, namely the parents, with a several as well as a joint right to turn the key and unlock the door....One glance at the consequences suffices to show that Lord Scarman cannot have been intending to say that the parental right to consent terminates with the achievement of the child of Gillick competence.'... If the position in law is that upon the achievement of Gillick competence' there is a transfer of the right of consent from parents to child and there can never be a concurrent right in both, doctors would be faced with an intolerable dilemma, particularly when the child was nearing the age of sixteen, if the parents consented, but the child did not."

[155] Ibid at 186.

[156] Ibid.

[157] Ibid at 187.

[158] See for example A Bainham, "The Judge and the Competent Minor"' (1992) 108 LQR 194. It is noted that in Re W (A Minor)(Medical Treatment) [1992] All ER 627 at 632 Lord Donaldson MR himself recognised the criticism of these statements and observed that as those remarks were not necessary to the decision in Re R, he was "free to reconsider the matter... "

[159] Re W (A Minor)(Medical Treatment) [1992] All ER 627.

[160] Op cit n 34. As noted above, this section is the statutory equivalent to s 25(1) of the Guardianship Act 1968. It applies in English law to make legally valid the consent of a minor aged 16 or 17 years. (The age of majority in England is 18).

[161] Op cit n 159 at 639-640. Lord Donaldson MR observed in this regard that the inherent powers of the Court under its parens patriae jurisdiction were theoretically limitless and extended beyond those of a natural parent:

"There can be therefore be no doubt that it has the power to override the refusal of a minor, whether over the age of 16 or under that age but 'Gillick competent'." (at 637).

[162] Re R (A Minor) (Wardship: Consent to Medical Treatment) [1991] 4 All ER 177 at 185.

[163] Op cit n 38, in Auckland Healthcare Services Ltd v Liu (per Tompkins J). It is noted that Tompkins J only briefly touched on this observation and does not appear to have considered the provision closely.

[164] M McDowell, in "Medical Treatment and Children: Assessing the Scope of a Child's Capacity to Consent or Refuse to Consent in New Zealand" Journal of Law and Medicine Vol 5 August 1997 81 at 91 describes the difficulties in interpretation of the semantics of s25(1). She notes that despite its intentions the section does not give children over sixteen the same rights as adults. The medical procedure must be for the benefit of the minor consenting whilst the rights of an adult are not so circumscribed and arguably extend to procedures which are not solely beneficial. A second point which causes some difficulty is the distinction between married minors who are accorded a right to refuse consent (s25(2)). However s25(1) is silent on this point implying that the unmarried minors are so limited. McDowell does observe, however, that this may be an overly literal approach to this provision.

[165] Op cit n 30.

[166] Section 14: "Review of guardian's decision or refusal to give consent:

(1) A child of or over the age of 16 years who is affected by a decision or by a refusal of consent by a parent or guardian in an important matter may...apply to a Family Court judge who may, if he thinks it reasonable in all the circumstances to do so, review the decision or refusal and make such an order in respect thereto as he thinks fit."

[167] Section 33. Act to be a code:

(1) Except as otherwise expressly provided in this Act, the provisions of this Act shall have effect in place of the rules of the common law and of equity relating to the guardianship and custody of children.

[168] This argument is made out by WR Atkin "Parents and Children: Mrs Gillick in the House of Lords" NZLJ March 1986, 90.

[169] Ibid.

[170] Ibid. Atkin describes the well known principle of the welfare of the child (s23) as "a classic example of the elasticity of the Act and the need for judicial creativity".

[171] Ibid at 92.

[172] Op cit n 167.

[173] Re J (An Infant): B and B v D-G of Social Welfare [1996] 2 NZLR 134 at 145 ( per Gault J).

[174] Re R (A Minor) (Wardship: Consent to Medical Treatment) [1991] 4 All ER 177.

[175] Re W (A Minor) (Medical Treatment) [1992] All ER 627.

[176] The latter part of this argument is made out by G Austin, "Righting A Child's Right to Refuse Medical Treatment: Section 11 of the New Zealand Bill of Rights Act and the Gillick competent child" OLR (1992) Vol 7 No 4, 578 at 580.

[177] New Zealand Bill of Rights Act 1990: Section 4: "Other enactments not affected".

[178] New Zealand Bill of Rights Act 1990 Section 6: "Interpretation consistent with Bill of Rights to be preferred".

[179] G Austin, "Righting A Child's Right to Refuse Medical Treatment: Section 11 of the New Zealand Bill of Rights Act and the Gillick competent child" OLR (1992) Vol 7 No 4, 578 at 581.

[180] New Zealand Government White Paper accompanying the draft of the 1985 version of the Bill, A Bill of Rights for New Zealand (Government Print, Wellington 1985), p 109 as discussed by G Austin, ibid at 582.

[181] New Zealand Bill of Rights Act 1990, s13: "Freedom of thought, conscience and religion".

[182] Ibid: s15: "Manifestation of religion and belief.

[183] Ibid: s14: "Freedom of expression".

[184] These arguments are made out by G Austin in Children: Stories the Law Tells (Wellington, Victoria University Press, 1994), p 155-156.

[185] Re J (An Infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134.

[186] Ibid at 145 - adopting the Gillick formulation that the scope of parental rights is reflective of parental duties towards children.

[187] Ibid at 146.

[188] Ibid.

[189] The Convention is a culmination of ten years negotiation and drafting originating from a Polish proposal in 1979 (the International Year of the Child). Produced by a Working Group of representatives of up to 40 countries and with successive drafts given close scrutiny by the UN, it is now regarded as a clear international standard for children's rights.

[190] Article 4:

"States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation."

[191] To ensure compliance with these objects all ratifying governments are required to report to the Committee on the Rights of the Child set up to monitor states' progress in complying with these requirements. New Zealand presented its first report to the Committee in 1996.

[192] Article 5:

"States Parties shall respect the responsibilities, rights, and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention."

[193] Article 3 (in part):

"1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration."

[194] Article 18 (in part):

"1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents, or as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern."

[195] Article 24 (in part):

"1. States Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States parties shall strive to ensure that no child is deprived of his or her right of access to such health care services."

[196] (1993) 10 FRNZ 486.

[197] Ibid at 499. Fraser J cited with approval observations of the English Court of Appeal in Re R (a minor) (unreported; 4.9.1992, per Purchase LJ) which held that in the exercise of judiciary discretion "the impact of the tenets, doctrines and rules of a society upon a child's future welfare must be one of the relevant circumstances to be taken into account."

[198] Op cit n 196 at 499.

[199] [1994] 2 NZLR 257.

[200] Ibid at 266. Cooke P notably went on to state "[t]he law as to the bearing on domestic law of international human rights and instruments declaring them is undergoing evolution."

[201] (1994) 12 FRNZ 548.

[202] Idem at 558-559. A similar view was taken by Judge Inglis QC in In the Matter of S Children [1994] NZFLR 971, at 977 where it was observed that "in the exercise of its discretionary powers in matters covered by the Convention the Court may need to take account of the terms of the Convention."

[203] WR Atkin, "Children's rights in New Zealand law and society" (1995) 25 VUWLR 249 at 269. Atkin observes that the lack of "rigorous analysis" by the New Zealand Courts of the content of the relevant articles of the Convention, of the tensions between them, of their limitations and their relationship with New Zealand domestic legislation, is not to be criticised. He finds detailed legal argument rarely helpful or even appropriate in cases involving children.

[204] Ibid at 269. Atkin observes that rather than providing scope for elaborate legal argument "the UN Convention may be more appropriately used to signal the importance of the children's wellbeing and welfare and as a way of insisting that children do not become objects of adults' processes and agenda."

[205] R Stent, "Unravelling the Code of Rights" New Zealand Health Review, Vol 1 No 2 Winter 1998 35 at 35.

[206] This inclusion of this requirement in the Code was spelt out under s20(l)(a) of the Health and Disability Commissioner Act 1994.

[207] It is noted that the use of the term "choice" is adopted to reflect the Code's focus on the active involvement of the consumer in the decision making process. A Fraser, Legal Manager, Office of the Health and Disability Commissioner "The Informed Consent Process and the Application of the Code to Children" in Consent in Child and Youth Health - Information for Practitioners (Ministry of Health, Wellington, NZ Law Society, December 1988) p 53.

[208] A child falls within the ambit of the broad definition of "health consumer" which "includes any person on or in respect of whom any health care procedure is carried out." (s2 Health and Disability Commissioner Act 1994).

[209] Code of Health and Disability Consumers Rights 1996. Clause 4 provides (in part):

"In this Code, unless the context otherwise requires 'Consumer' means a health consumer; and for the purposes of rights 5, 6, 1(1), 1(1) to 1(10) and 10, includes a person who is entitled to give consent on behalf of that consumer."

[210] This possibility is discussed by M McDowell "Medical Treatment and Children: Assessing the Scope of a Child's Capacity to Consent to or Refuse to Consent in New Zealand" Journal of Law and Medicine Vol 5 August 1991 81 at 93.

[211] It is noted that the information contained in this publication is provided for practitioners in the child and health community. It contains a legal disclaimer to the effect that the material in the publication should not be considered an exhaustive statement of the law (p 2).

[212] Consent in Child and Youth Health - Information for Practitioners, 13.

[213] Ibid at 25-26.

[214] Op cit n 207 at 53. Fraser notes that the presumption of competence contained in Right 7(2) "forms the basis of the Code's approach to the giving of informed consent by children."

[215] "Medical Treatment and Children: Assessing the Scope of a Child's Capacity to Consent to or Refuse to Consent in New Zealand", Journal of Law and Medicine Vol 5 August 1997, 81 at 93.

[216] Op cit nn 150, 151.

[217] Secretary, Department of Health and Community v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 at 293.

[218] [1985] UKHL 7; [1986] 1 AC 112 at 188-189.

[219] [1986] 1 AC 150 at 189. Dealing specifically with contraception, he said:

"It is not enough that she should understand the nature of the advice which she is being given: she must have sufficient maturity to understand what is involved. There are moral and family questions especially her relationship with her parents, long-term problems associated with the emotional impact of her pregnancy and its termination and their are risks to health of sexual intercourse at her age..."

[220] [1986] 1 AC 150 at 173.

[221] [1986] 1 AC 150 at 201. It is noted that despite his dissent Lord Templeman did not disagree with a child's ability to consent to treatment without the consent of their parents.

[222] I Kennedy and A Grubb, Medical Law: Text and Materials (London, Butterworths, 1989) at 189.

[223] Issues of interpretation have been the subject of academic debate, see for example: J Devereux, "The Capacity of the Child in Australia to Consent to Medical Treatment - Gillick Revisited", Oxford Journal of Legal Studies Vol 11 No 2, 283 at 292.

[224] Ibid. J Devereux observes that standard determined by Lord Scarman is "one not all adults would be able to reach...and appears to equate ["intelligence"] with maturity and wisdom". It is noted that an adult of full mental capacity has the absolute right to refuse treatment however misguided, irrational or wrong a patient's refusal of medical treatment may be: Sidaway v Board of Governors of the Bethlehem Royal Hospital [1985] UKHL 1; [1985] AC 871.

[225] [1993] 1 FLR 386.

[226] Under a conventional regime E's prospects of remission were assessed at between 80% and 90%.

[227] [1993] 1 FLR 386 at 391.

[228] M Brazier and C Bridge "Coercion or caring: analysing adolescent autonomy" 1996 Legal Studies 84 at 102.

[229] Re R (A Minor) (Wardship: Consent to Medical Treatment) [1991] 4 All ER 177 at 183.

[230] Right 7(2).

[231] Secretary, Department of Health and Community v JFEB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218 at 271. This observation was made in relation to the "best interests" test.

[232] Choosing for Children (Oxford, Oxford University Press, 1990), p 100.

[233] The nature of procedures which constitute minor and more major medical treatment will require formulation according to standards currently adopted by medical practitioners and paediatricians. It is suggested that a procedure of a more serious nature will involve an invasive, complex or irreversible procedure which could result in harm to the child both if the procedure is carried out or if it is not.

[234] The guidelines proposed in (b) and (c) correspond to the South Australian position in s12 Consent to Medical Treatment and Palliative Care Act 1995. This provision applies to any minor under the age of sixteen:

12. A medical practitioner may administer medical treatment to a child if - (a) the parent or guardian consents; or (b) the child consents and - (i) the medical practitioner who is to administer the treatment is of the opinion that the child is capable of understanding the nature, consequences and risks of the treatment and that the treatment is in the best interests of the child's health and well-being; and (ii) that opinion is supported by the written opinion of at least one other medical practitioner who personally examines the child before treatment is commenced.

[235] Queensland Law Reform Commission, Health Care Authorisation For Young People Bill 1996 This Bill has not yet been adopted by the Queensland Government.

[236] Op cit n 99.

[237] Queensland Law Reform Commission, Health Care Authorisation For Young People Bill 1996:

Part 2: ss 30-35.

[238] Health Care Authorisation For Young People Bill 1996: Part 1; ss 24-29.

[239] A frequently cited formulation is that of L Roth, A Meisel and C Lidz "Tests of Competency to Consent to Treatment" (1977) 134 American Journal of Psychiatry 279 who summarise the five tests of competency in legal and psychological writings as: (1) Evidence of choice; (2) Reasonable outcome of choice; (3) Choice based on rational reasons; (4) The ability to understand and (5) Actual understanding.

[240] The judgments in Gillick provide a number of relevant factors for this assessment criteria. These include the child's understanding and intelligence; his chronological, mental and emotional age; his intellectual development and maturity; his capacity to make up his own mind, and his ability to understand fully, and to appraise the medical advice being given, the nature, consequences and implications of the advised treatment, the potential risks to health and the emotional impact of either accepting or rejecting the advised treatment. These factors were identified by J Mundy in Principles of Medical Law (Oxford, Oxford University Press, I Kennedy and A Grubb (eds), 1998) ch 4, "Consent to Treatment: Children and the Incompetent Patient" at 205.


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