Parent/Guardian Consent

Under the Consent to Medical Treatment and Palliative Care Act 1995 (SA) [s 12(a)] a parent or guardian of a child under 16 years of age may consent to medical treatment for the child.

However, if the consent of a parent or guardian is not available or is withheld, under s 12(b) the doctor can still proceed if:

Disputes regarding the administration of treatment to a child under 16 years of age, including both the consent or withholding of consent for treatment, can be addressed through mediation with the Public Advocate or review by the South Australian Civil and Administrative Tribunal (‘SACAT’) [Part 3A]. Applications can be brought by a parent or guardian, a medical practitioner providing, or who is to provide, medical treatment, or another person who can satisfy SACAT as to their proper interest [s 18A]. A child cannot bring or participate in SACAT proceedings but is entitled to appear by the Public Advocate [s 18K].

Court-ordered treatment

The Federal Circuit and Family Court can also withhold or grant consent to medical treatment for a child. Family law proceedings concerning the child would have to be commenced, see CHILDREN AND YOUNG PEOPLE. Any determination of the Court will override the Consent to Medical Treatment and Palliative Care Act 1995 (SA), including a determination that the consent of the parents falls within parental responsibility held by a particular person or persons. For example P. v P. (1994) 181 CLR 583; [1994] HCA 20 where the High Court held that where a child's parents have been married, the Family Court has the power to make an order approving sterilisation, notwithstanding a decision contrary by the Tribunal.

The Federal Circuit and Family Court's powers are very important in cases where the parents and the child do not agree about medical treatment or a doctor is concerned about the decision made by the parents and/or the child concerning treatment, as, for example, in Marion's case (1992) 175 CLR 218; [1992] HCA 15. See also theRe Kelvin case [Re: Kelvin (2017) FamCAFC 258] which allowed a child to undertake stage two medical procedures and treatment in relation gender dysphoria without approval of the Court, in circumstances where the parents of the child and relevant medical practitioners agreed with the treatment proposed.

The Youth Court of South Australia may make orders for the assessment and treatment of children for drug dependency, see Children and Young People, Assessment, treatment and detention orders for drug dependency.

The Supreme Court has an inherent jurisdiction to make decisions in limited cases, however consideration should be given to an application to SACAT in the first instance and legal advice should be sought. The Supreme Court parens patriae jurisdiction may be available in non-emergency cases where:

This is is an inherent jurisdiction of the Court to protect the person and property of those in the state of South Australia who are unable to look after themselves. The Court may override the medical treatment decisions of both the parents and the child. This power has been used to authorise blood transfusions to a child against the wishes of the child's parents and of the child themselves [see Children, Youth & Women’s Health Services Inc v YJL, MHL and TL (by his next friend) (2010) 107 SASR 343; [2010] SASC 175; Women's and Children's Health Network Inc v JC, JC, and KC (by her litigation guardian) [2012] SASC 104]. Any decision the Court makes must put the interests of the child first.

Orders may also be made under the Mental Health Act 2009 (SA), see How is mental health treated?

Blood and tissue donations

A child cannot give blood without parental consent, but only for treatment purposes under the following circumstances:

See Transplantation and Anatomy Act 1963 (SA) s 19.

In limited circumstances, a child can donate body tissue (e.g. bone marrow). Consent of the child and their parents is required and this consent must be approved by a Committee made up of a lawyer, a doctor and a social worker or psychologist. Approval from each member of the Committee is required (Transplantation and Anatomy Act 1963 (SA) s 13).

Consent can be withdrawn at any time - whether by the parent or child (Transplantation and Anatomy Act 1963 (SA) s 14).

Early childhood services and immunisation requirements

From 7 August 2020, children will not be able to enrol in, or attend early childhood services unless all immunisation requirements are met [Part 12A South Australian Public Health Act 2011 (SA)]. For further information on immunisation requirements please visit the SA Health website (link opens new window). See also PARENTAL RIGHTS AND DUTIES.