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This page provides an overview of who has authority for providing consent for medical and dental treatment on behalf of children and young people in statutory out-of-home care (OOHC). Medical treatment is defined as any medical procedure, operation or examination.
This page applies to children and young people in foster, relative and kinship care placements as well as in Intensive Therapeutic Care (ITC) or Alternate Care or Special Care Arrangements supervised by either Non-Government Organisation (NGO) Service Providers or DCJ. It does not apply to children and young people in temporary care arrangements.
Children and young people can consent to their own medical and dental treatment if they are assessed by a medical practitioner as having a sufficient level of understanding, intelligence and maturity to fully understand proposed medical treatment. The term used by NSW Health to describe this is Mature Minor or Gillick Competent.
A medical practitioner will carefully assess a child or young person's capacity to consent to the specific medical or dental treatment proposed by taking into account the significance of the proposed treatment. It is not the responsibility of the child's caseworker or carer to make this assessment.
For mature minors Barnardos or DCJ consent is not required for most medical treatments. However, health workers and carers should support the young person to inform their caseworker that they have undergone treatment to support holistic casework.
There is no set age at which a child or young person may be assessed as capable of giving consent for their medical and dental treatment. It depends upon the treatment being proposed and their ability to fully understand the implications of that treatment. A court may still override a Mature Minor's consent to or refusal of treatment if they do not consider the decision to be in the Mature Minor's best interests.
If a child or young person is assessed by a medical practitioner as lacking the capacity to consent to medical treatment, either the child's authorised carer or the delegate exercising parental responsibility will be required to provide consent. This will depend on the type of treatment proposed (refer to Medical and Dental Tool). In these instances, it may still be appropriate for the child or young person to be involved in discussion and decision making about their treatment. A young person with an intellectual disability is not automatically deemed incompetent to consent to treatment. The competence of a young person with an intellectual disability must be assessed on a case-by-case basis.
An authorised carer is a person who has been authorised by a designated agency under the care legislation. This may include a foster, relative or kinship carer or DCJ or agency staff in an Intensive Therapeutic Care Home, Alternate Care or Special Care Arrangement. Authorised carers can consent to most day-to-day medical or dental treatment for a child or young person in their care if the child or young person lacks the capacity to consent including:
It might include circumstances where the child's life is not in immediate danger but a delay in treatment is causing the child significant distress or severe pain.
The law requires authorised carers to immediately notify their designated agency (i.e. DCJ or the NGO service provider who supervises the placement) if a child or young person in their care suffers a serious accident, illness or injury.
To ensure children and young people in care are provided with timely medical and dental treatment, it is important authorised carers are fully informed of the range of circumstances for which they can (and cannot) give consent. A foster or relative kinship carer cannot delegate this responsibility to another family member and should attend medical appointments with the child or young person when consent is required for a medical or dental treatment.
Informing carers about the requirements for consent occurs through initial and ongoing carer training and through communication with their caseworkers. The child's Health Management Plan developed through their participation in the OOHC Health Pathway Program can support this cooperation between the caseworker and carer to meet the health needs of the child.
Where an authorised carer does not have the authority to consent (as set out above), DCJ (or Barnardos) may be required to provide consent as an exercise of parental responsibility. This includes:
DCJ may also become involved in the medical or dental care of a child or young person under the parental responsibility of the Minister in other circumstances, including:
Wherever possible, consent should be obtained from DCJ during normal business hours to avoid the need to contact the Child Protection Helpline. NGO OOHC Service Providers should contact their local DCJ Child and Family District Unit (CFDU) to obtain consent if required. This should also be done on behalf of foster or relative kinship carers. NGO OOHC Providers will be required to complete relevant paper work with input from the foster, relative or kinship carers and provide to the CFDU.
When after-hours consent from DCJ is sought by a health practitioner, it is important for DCJ to obtain details about the proposed treatment, including the need for the proposed treatment and the consequences if treatment is not provided. This information is critical for DCJ to provide informed consent.
Yes, there are some circumstances where medical treatment can only occur with the approval of a Tribunal or Court, including "special medical treatment" within the meaning of section 175 of the Care Act and a "special medical procedure" under the Family Law Act 1975.
In these instances, DCJ staff can refer the matter to DCJ Legal and NGO staff can seek advice from their DCJ CFDU.
A medical practitioner or registered dental practitioner may carry out medical treatment on a child or young person without consent if they are of the opinion, that the treatment on the child or young person is necessary to save his or her life, or to prevent serious damage to his or her health.
No, NGO OOHC service providers (with the exception of Barnardos) are not authorised to consent to medical and dental treatment for children and young people who are not considered to be mature minors in OOHC on the Minister's behalf.
However, NGO OOHC service provider staff authorised as carers in an ITC, Alternate Care or Special Care Arrangement can consent to certain medical and dental treatment as the child or young person's authorised carer (refer to Medical and Dental Tool). NGO OOHC service providers may have policies and procedures in place that require authorised carers to seek advice and endorsement of any medical and dental treatment before consenting to certain treatments.
Any policy decisions related to consent for medical and dental treatment developed by the NGO service provider should be shared with authorised carers. If the service provider is aware that the medical or dental treatment requires the consent as an exercise of parental responsibility, they should inform DCJ immediately so that consent can be considered and provided, when appropriate.
Barnardos is the only NGO providing OOHC that has been delegated certain aspects of parental responsibility (including a delegation to consent to a broader range of medical and dental treatments) for certain children and young people, for whom that agency has case management. These decision making functions are set out in a formal Instrument of Delegation and Deed of Agreement with Barnardos.
This delegation does not include a decision to consent to, or to decline to consent to end of life medical treatment or medical treatment involving the termination of a pregnancy, rendering a child or young person infertile or medical treatment involving potential terminal illness. Those matters are to be made by the relevant DCJ delegate in accordance with current DCJ policy and practice.
The Medical and Dental Consent Tool which outlines who has authority to give consent for a range of medical and dental treatments for children and young people in OOHC.
NSW Consent to Medical and Healthcare Treatment Manual which provides operational guidance and procedures to support compliance with the NSW law on obtaining consent to medical and healthcare treatment from patients or their substitute consent providers.
29 Jun 2023
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