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Where am I now? Lawlink > Law Reform Commission > Publications > Dr Alex Apler, "Do the lawyers have any idea?"

SEMINAR - Consent to medical treatment by young people (Sydney, 17 May 2004)

Dr Alex Apler, "Do the lawyers have any idea?"


The practice of medicine may be said to be guided by ethical principles, clinical judgment and the law. A medical practitioner relies on his or her clinical judgment when treating patients. Clinical judgment alone, however, may not solve every problem in medical practice. Assessing capacity of a young person to understand and consent to proposed medical treatment may raise issues that are not purely clinical. In such a situation, a medical practitioner may look to ethics or legal advice for answers that a clinical approach does not provide.

To begin with, how does a medical practitioner know when the adolescent can consent to his or her own treatment? The doctor, faced with this problem, may adopt a clinical, practical approach, which takes into account the history of the relationship with the young patient, past involvement of the young person’s parents, and the risks associated with the treatment proposed. If the young patient has been able to understand and comply with treatment in the past, without objection from his or her parents, the doctor may be more likely to initiate another course of treatment, especially if that treatment is relatively minor. The doctor may encourage the young person to inform his or her parents, or contact the parents directly, with the young person’s consent.

The matter of obtaining consent from a young person becomes more difficult where the young person is not known to the doctor, there is a history of parents objecting to treatment or where the treatment proposed is controversial and carries considerable risk to the patient. The doctor may, again, adopt a practical approach, weighing up the benefits and risks involved in treating and not treating the patient. If the treatment is urgent or life saving, the doctor may feel justified in dispensing the treatment, despite potential objections from the parents or questions about the young person’s capacity to provide the necessary consent. If the treatment is not urgent, however, the doctor may consider other approaches that may help reduce the difference between the adolescent’s and his or her parents’ attitudes towards treatment. The doctor may offer to meet with the adolescent and his or her parents to discuss the reasons for wanting or refusing specific treatment. They may be concerned about the treatment and associated risks. The family may hold specific attitudes about the illness or its treatment, influenced by cultural, religious or personal beliefs. A doctor who helps the family understand how it came to hold its views, and provides information about the illness may help the family reach agreement regarding the proposed treatment.

The special difficulties associated with adolescents consenting to treatment may also be reduced by focusing on the adolescent’s developing sense of autonomy. The issue of autonomy is central to the notions of consent and confidentiality. The adolescent, in a medical consultation, may be acutely sensitive to inequalities within the medical relationship and the extent to which he or she may exercise control over the relationship, the disclosed information and the decisions regarding treatment. The adolescent may be concerned about the extent to which his or her parents are aware and are involved in treatment. The concerns of the adolescent regarding treatment often reflect the wider problems in the lives of adolescents mastering responsibility and autonomy and attempting to define their roles in their relationships with parents, teachers, police and others. Addressing the issues of autonomy and confidentiality can help alter the adolescent’s attitude towards treatment.

The most difficult cases, in which the clinical approaches I've discussed may not be enough, are the ones where treatment is considered necessary but not life saving and where the young person and his or her parents disagree about the need for treatment proposed. Request for contraceptive treatment may be such a case. Contraception may be contentious and not life-saving. Consent from the parents may be required, but the young person may not want her parents to know. What could a doctor do?

The doctor may consider the medical ethics relevant to the treatment encounter. The NSW Medical Board, in a document titled “The duties of a doctor registered with the NSW Medical Board”, set out general principles in relation to the practice of medicine. These principles include the following:

    • Make the care of the patient your primary concern;
    • Listen to patients and respect their views;
    • Give patients information in a way they can understand;
    • Respect the right of patients to be fully involved in decisions about their care;
    • Respect and protect confidential information.
In the subsection titled “Maintaining trust”, the document lists the following additional principles:
    • Give patients full information about their condition, treatment and prognosis. You should provide this information to those with parental responsibility where patients lack the maturity to understand what their condition or its treatment may involve, provided you judge it to be in the child’s best interests;
    • Wherever possible, be satisfied that the patient has understood what is proposed and consents to it, before you provide treatment or investigate a patient’s medical condition;
    • Respect the right of patients to decline treatment…
These principles emphasise informed consent, confidentiality and exercise of choice in respect of treatments proposed. Following these principles, the doctor may keep the request for contraception confidential, and dispense the contraceptive, provided the young person has been adequately informed about the treatment and its side effects. These guidelines, however, do not address the central issue in many of these cases, which is how to determine whether the young person has sufficient maturity and understanding to avoid the need for the doctor to obtain consent from the young person’s parents.

If a doctor feels that neither clinical nor ethical approaches have resolved a particular problem, the doctor may turn to a legal advisor for help. The doctor may then be told about the uncertainty regarding adolescents between the ages of 14 and 16 and the importance of obtaining parental consent, wherever possible. The doctor may also be told that an adolescent can consent to treatment if he or she has sufficient understanding and intelligence to understand fully what is proposed. This may, however, leave the doctor pondering what “understanding fully” means. The doctor may decide that the young patient, who can discuss the pros and cons of the treatment and its alternatives, has a level of understanding of the treatment proposed, but is this understanding “sufficient"? The doctor may be left with a difficult problem of deciding whether the information obtained in the course of a clinical assessment is sufficient to satisfy a legal test.

In the end, a doctor may adopt the most practical approach available, which is to choose an ethical option most likely to avoid harm to the patient and accord with the patient’s wishes. In relation to contraception, for instance, the doctor may decide that prescription of contraception is most likely to avoid harm in a patient who is sexually active anyway. Prescription in this context may confer additional benefits by helping to develop rapport between the doctor and the young patient and open dialogue about health and lifestyle issues that may be relevant, such as sexually transmitted diseases and drug use. However, this practical approach, in the end only side-steps a difficult legal question of determining the capacity of the adolescent to consent to the medical treatment proposed.



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