CONSENT TO MEDICAL PROCEDURES ON MINORS
| Published date | 01 July 1973 |
| Author | P. D. G. Skegg |
| Date | 01 July 1973 |
| DOI | http://doi.org/10.1111/j.1468-2230.1973.tb01373.x |
CONSENT TO MEDICAL PROCEDURES
ON
MINORS
THERE has long been uncertainty as to the law relating to consent
to medical procedures on minors.
It
was with a view to overcoming
this uncertainty that the Latey Committee went beyond its terms
of reference, and recommended legislation along the lines now
enacted in section
8
of the Family Law Reform Act
1969.’
How-
ever, this provision is by no means comprehensive, and difficulties
remain. In this paper it is proposed to examine the capacity of
minors to consent to the performance of medical procedures
on
themselves, and the capacity
of
parents and others to consent to the
performance of medical procedures on minors.
CAPACITY
OF
MINORS
Section
8,
of the Family Law Reform Act
1969,
commences by
providing that
“
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 constitute a trespass to his person,
shall be as 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.”
The section goes on to provide that the expression “‘surgical,
medical or dental treatment,’ includes any procedure undertaken
for the purpose of diagnosis,” and that the section applies
“
to
any procedure (including, in particular, the administration of an
anaesthetic) which is ancillary to any treatment as it applies to that
treatment.” Even if the term
‘‘
trespass to the person
”
is taken
to refer only to the tort of trespass to the person, the section will
have some application to the criminal law. Medical treatment
which, in the absence of consent, would constitute the tort
of
trespass to the person, will normally also come within the purview
of one
or
more offences against the person.
In cases where the section applies, there should no longer be any
1
Report
of
the Committee
on
the Age
of
Majority
(1967),
Cmnd.
3342,
pp.
116-118.
2
In recent years, a nnrnber
of
other jnrisdictions have
8al.so
enacted legislation
dealing with consent to medical procedures
on
minors. See
e.g.
Guardianship
Act
1968,
8. 25
(N.Z.);
Minors
(Property
and
Contracts) Act
1970,
8.
49
(N.S.W.).
3
S.
8
(1).
4
S.
8
(2).
6
Ibid.
370
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