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Where a child who is ‘capable of exercising a reasonable discretion’ (s51Criminal Code Act 1924 (Tas)) seeks medical treatment and a doctor consents to perform it, the only way the parent or guardian can stop the treatment is by applying to the Supreme Court for a restraining order. So, for example, a child or young person who is capable of exercising a reasonable discretion could ask a doctor for a contraceptive device or drug and, having the consent of the child/young person, the doctor can prescribe contraceptives in spite of the fact that the parents do not know about it. There is no age limit for buying contraceptives like condoms and spermicides from the chemist.

Marion’s Case – medical treatment for minors and people with disabilities

In 1991, the High Court was asked to determine whether parents or courts could make a decision on the behalf of an intellectually and physically disabled child to undergo sterilisation. This was a question of the ‘best interests’ of the child. ‘Marion’ was the name given to the respondent. She suffered from mental retardation, severe deafness, epilepsy and behavioural problems. Her parents sought an order for a total hysterectomy and removal of her ovaries to prevent menstruation and pregnancy. Marion was incapable of caring for herself physically and was also incapable of understanding the meaning of sexuality, pregnancy and motherhood.

The High Court reversed a decision of the Family Court, which held that the parents could authorise the operation. The High Court said that only sterilisation as an incident of surgery was within the powers of parental consent. The decision to sterilise could not be made by the parents alone, but must be authorised by the Family Court if it was in the best interests of the child.

The Court also held that parental power to consent to medical treatment on behalf of the child decreased as the child developed the capacity and maturity to understand the nature of what was proposed. This was not fully applicable with Marion, as she was not ever going to develop the capacity or maturity to understand the nature of sexuality, pregnancy or motherhood, however it is an important precedent in determining children’s rights in relation to their capacity to consent for medical treatment.

The impact of this case has been that parents cannot provide consent to sterilisation unless the sterilisation is a matter of last resort, which addresses the needs and capacities of the child’s life. The Family Court can authorise sterilisation, but only as a matter of necessity. Practice now points to the ready availability of other means of managing menstruation and chances of pregnancy, as invalidating arguments for the necessity of sterilisation.

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