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An extract from the keynote address presented by the Chief Justice of the Family Court of Australia

    The Honourable Justice Alastair Nicholson AO RFD to the The 7th Australasian Conference on Child Abuse and Neglect in Perth on 19 October 1999. This article appeared in Australian Children’s Rights News No. 23

An area of abuse that does not automatically come to mind when we think of child abuse is the medical violation of children and their right to bodily integrity. The most stark example is the illegal sterilisation of adolescent girls with an intellectual disability.

The entitlement of parents to consent to or refuse medical treatments for their children has long been recognised by the common law as a incident of parenthood. Under the Family Law Act 1975 (Cth), it applies to children under 18 years of age and is regarded as an element of the bundle of duties, powers, responsibilities and authority which are deemed by law or conferred by court order.1 However, as children approach legal adulthood, the capacity of parents to make decisions for them is supplemented and eventually overtaken by the capacity and right of children to make their own choices and give a valid consent to treatment.2 This principle known as the “Gillick principle” will be particularly familiar to our guests from the United Kingdom.

The scope of parental authority is also curtailed for some types of medical procedure. In the landmark 1992 decision in Secretary, Department of Health and Community Services v JWB and SMB (“Marion’s case”)3, the Family Court had been presented with an application for the sterilisation of a 14-year-old teenager with a severe intellectual disability and lack of capacity to give or withhold consent. The procedure was sought for the purpose of “preventing pregnancy and menstruation with its psychological and behavioural consequences”4. Due to differing views in the Full Court of the Family Court of Australia as to the question of whether parents could consent to such a procedure, the matter went before the full bench of the High Court.

A majority of the High Court held that parental consent is ineffective where a proposed intervention such as sterilisation is invasive, permanent and irreversible, and not for the purpose of curing a malfunction or disease. Their Honours further held that courts exercising jurisdiction under the Family Law Act 1975 have a special responsibility to approve such medical procedures, a jurisdiction which can coexist with courts and tribunals exercising a statutory jurisdiction,5 or the ancient parens patriae or “wardship” jurisdiction.

Authorisation may only be given as a matter of law if the Court is satisfied that the procedure is the step of last resort. To this end, the Court has been developing case management protocols with key stakeholders that have been operating for a number of years in Victoria and Queensland with a further set. In essence, the protocols entail two components.

  • The first aspect of the protocols is diversionary by creating early processes for case conferencing that seek to ensure that resources which could avert the application are identified, proposed and marshaled; and 
  • The second element of the protocols lays down a framework for the timely progress of an application that cannot be met with diversionary responses, through to the point of determination by designated judges.

The establishment of protocols has been accompanied by the design and dissemination of information guides which attempt to explain the issues in plain English and educative attempts to engage with medical and allied health professionals.6

The importance of complying with the requirement of authorisation cannot be over-emphasised. Absent a valid authorisation, the carrying out of a sterilisation procedure on a minor unable to consent for herself is a violation of the right to bodily integrity. It is also an assault giving rise to criminal and civil liability. It is plainly a form of child abuse, both as a matter of common sense and within the terms of the definition of “abuse” under the Family Law Act 1975 to which I referred earlier.

I therefore find it extremely disturbing that recent evidence points to non-compliance with the law requiring authorisation.

Nearly two years ago, former Federal Disability Commissioner, the late Ms Elizabeth Hastings released a report commissioned by Human Rights and Equal Opportunity Commission that had been prepared by Susan Brady, an experienced advocate in the field of disability and Dr Sonia Grover, a consultant gynaecologist appointed to the Royal Children’s Hospital in Melbourne. Their review and analysis of data from the Health Insurance Commission and the Australian Institute of Health and Welfare found as follows:

    “Court and tribunals have authorised a total of 17 sterilisations of girls since Marion’s case. Meanwhile, data collated by the Health Insurance Commission shows that at least 1045 girls have been sterilised over the same period, and this figure only counts those sterilisations which qualify for a medicare benefit and for which a claim has been processed. It excludes sterilisations carried out by hospital doctors on public patients in public hospitals.”7

Given the rarity of reproductive tract disease for girls and young women in the under 20-year-old age group (including those with intellectual disability)8, the authors concluded that “without any doubt most were sterilised unlawfully”9. Moreover, the authors referred to “persistent anecdotal evidence that some sterilisation procedures may be disguised as other procedures (with appendectomy being recorded as the principal procedure, for example)”.10

Although these figures were disputed by the Federal Minister for Health, Dr Michael Wooldridge, the Minister appeared to accept that 202 sterilisations took place in the relevant period – 185 more cases than the 17 procedures that had been found to be authorised. In contrast, last August, the Federal Parliament’s multi-party Joint Standing Committee on Treaties reported on the United Nations Convention on the Rights of the Child and would seem to have accepted Brady and Grover’s estimates.11

The Minister’s response to the report indicated that no investigations would be conducted into the recognised discrepancy and I can only endorse the harsh assessment expressed by the late Ms Hastings at the time. She said:

    “A world in which government cannot be bothered to investigate potential illegal medical assault on nearly 200 of its citizens, in which those with no authority feel free to make decisions which are blatantly against the law and to carry out serious and irreversible procedures on those with little or no capacity to give or withhold consent, is a world in which people who have disabilities can have no certainty or confidence about their human being or their future.12

I still adhere to what I said in the 1989 case of In re Jane, a view that would seem to have been shared by the majority in Marion’s case:

    “Like all professions, the medical profession has members who are not prepared to live up to its professional standards of ethics and experience teaches that the identity of such medical practitioners becomes known to those who require their assistance and their services are availed of. Further, it is also possible that members of that profession may form sincere but misguided views about the appropriate steps to be taken.” 13

With the passage of time since the decision in Marion’s case and attention to it, the latter explanation has become less credible as a defence against both criminal and civil liability.

That is not to say that I favour the use of the criminal law to enforce compliance with the legal requirement of authorisation. Bringing criminal proceedings is fundamentally problematic because: 

    “[p] arents would frequently be knowingly involved in the by-passing of authorisation. As a result, they too would be liable for prosecution, with severe likely consequences for the particular child’s relationships and quality of life.14

Consistent with my concern in In re Jane as to the ethics of the medical profession, I share the view that a significant deterrent effect would be achieved through:

    “encouraging a stronger and more proactive stance by allied health and personal care staff who might be “whistleblowers” and medical boards in the imposition of sanctions.” 15

The Court’s protocols concerning special medical procedures have not previously covered such matters and in my view they should. I am therefore pleased that the current protocol development process in NSW stewarded by Justice Colleen Moore is providing an opportunity to explore the logistics and practicalities of such an extension and it is doing so with the benefit of participation by a representative of the Committee of Presidents of Medical Colleges.

There must also be, I think, a broad and well-informed professional base for supporting what I would characterise as a controversial approach to non-compliance. I would therefore urge the relevant disciplines and organisations represented at this conference to initiate or revisit attention within their professional structures, to the issue of unauthorised sterilisations. In doing so, I would encourage you to have in hand the benefit of advice as to:

    the criminal and civil liability that may attach to direct and also indirect involvement in an unauthorised procedure; and

    the statutory consequences of not fulfilling mandatory reporting requirements in respect of "abuse". 

Brady and Grover’s data suggest there is a liability timebomb waiting to explode.


Footnotes

  1. See ss 61B, 61C and 61D of the Family Law Act 1975.
  2. As to the common law where legislation does not apply, see the decision of the majority of the High Court in Marion’s case (1992) 175 CLR 218 at 237-238 and Deane J’s comments at 290 -294. The majority there expressly approved the House of Lords decision in Gillick v West Norfolk and Wisbech Area Health Authority (“Gillick’s case”) [1986] AC 112. The right may also be recognised by statute: for example, see Minors (Property and Contracts) Act 1970 (NSW) s 49 and Consent to Medical Treatment and Palliative Care Act 1995 (SA) ss 6 and 12.
  3. (1992) 175 CLR 218.
  4. Marion’s case (1992) 175 CLR 218 at 229.
  5. Such as the New South Wales Guardianship Tribunal, which is specifically granted jurisdiction by s175 Children and Young Persons (Care and Protection) Act 1998 (NSW) to consent to the carrying out of a “special medical treatment”.
  6. A Question of Right Treatment is available from the Publications Unit of the Family Court of Australia.
  7. Brady, S and Grover, S, The Sterilisation of Girls and Young Women in Australia – A Legal, Medical and Social Context, HREOC, December 1997, p 58. The Health Insurance Commission data excludes services provided by hospital doctors to public patients in public hospitals; Ibid p. 50.
  8. Ibid, pp. 23-24.
  9. Ibid, p. 58.
  10. Ibid, p 50.
  11. That “[t]here have been 1200 minors who have undergone hysterectomies and sterilisations in Australia since 1992.”:Joint Standing Committee on Treaties Executive Summary: United Nations Convention on the Rights of the Child (17 th Report) (1998) Parliament of the Commonwealth of Australia, Canberra at p 46, tabled in Parliament on 28 August 1998.
  12. Hastings, E, The Right to Right Treatment, A Keynote Address to launch A Question of Right Treatment, University of Melbourne, 28 March 1998, p 5.
  13. (1989) FLC 92-007 at 77,257.
  14. Sandor, D. (1999) 'Sterilisation and Special Medical Procedures on Children and Young People - Blunt Instrument? Bad Medicine?' in Freckelton, I. and Petersen, K. (Eds) Controversies in Health Law, The Federation Press, Sydney, p. 19.
  15. Ibid.
     

 

 

 

 

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