Up until the age of 14, the parents of a child must generally consent to any medical treatment that their child receives. There are exceptions to this rule, however, this is often the case in emergencies, when there is no time or opportunity to obtain consent. That begs the question, what happens if parents refuse medical treatment for their child?
If the parents of a child are withholding consent to medical treatment, the Court is able to act in the place of the parents and consent to medical treatment if it is in the best interests of the child; this is known as parens patriae.
Courts must often act in the place of parents when parents withhold consent due to religious grounds. Many religions do not believe in vaccinations, organ donations or blood transfusions, and whilst an adult has every right to withhold consent for these treatments, it is extremely problematic when parents refuse these treatments on behalf of their child. The Court will always prioritise the interests of the child.
Recently, the Supreme Court heard a case (Re Marlie [2021] NSWSC 973), where a pregnant woman had tested positive for Hepatitis B but refused to consent to her baby receiving the Hepatitis B vaccination after the birth. The mother believed that her child’s immune system should not be “tampered with” and should be left as “God created it”. On the same day that the baby was born, the hospital asked the Court to step in and consent to the treatment, as it was likely that the baby would contract the disease and suffer life-long effects.
The Court ultimately consented to the vaccination, stating that it was clearly in the best interests of the child to receive the treatment. Interestingly, as the mother normally resided in Queensland, and was only in NSW to give birth, the Court refused to grant any further orders for other vaccinations and the hospital made a separate request to the Supreme Court of Queensland for the baby’s other vaccinations.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
