Health Law Essay: Limits on Parental Authority and Child Treatment

This essay delves into the complex intersection of health law, parental rights, and child welfare, specifically focusing on the contentious issue of parental refusal of medical treatment for children. The paper examines the legal framework in Australia, referencing relevant legislation like the Children and Young Persons (Care and Protection) Act 1998 and the Consent to Medical Treatment and Palliative Care Act 1995, as well as landmark case laws such as Gillick vs. West Norfolk and Wisbech Area Health Authority 1986 and Great Ormond Street Hospital vs. Yates 2017. It explores the ethical considerations and the roles of medical practitioners, courts, and legal guardians in safeguarding a child's best interests. The essay analyzes the limits of parental authority, particularly when religious beliefs conflict with medical interventions, and discusses the circumstances under which courts may intervene to override parental decisions. The paper also touches upon the concept of child competency and their ability to consent to medical treatment. The essay concludes by highlighting the need for a balanced approach that prioritizes the child's health while respecting parental rights, and discusses potential law reforms to address this delicate balance.

Running head: HEALTH CARE OF CHILDREN
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HEALTH CARE OF CHILDREN
Name of the student:
Name of the university:
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1HEALTH CARE OF CHILDREN
Introduction
Children of a country are one of the most vital of the modern nation as well as for future
development of it.1 Parent, as well as other family members of a child, have been ordinarily
committed to providing each advantage, which is possible for their children and ensuring that the
child is healthy and occupies every opportunity that he needs to fulfil his potential.2 However,
the communities have been varied to its commitment for such collective health of their children.
They also may have diverse in such resources, which they may available to fulfil the basic needs
of a child. The physician, as well as the parent of a child, are responsible for the better health of
their child and provide the best treatment, which is suitable for them. In several cases in the
territory of Australia, both of the parents of a sick child as well as the treating doctor have
disagreed for doing a treatment of proposed medical treatment.3 In such a situation, the court of
law may interfere to settle these disputes regarding the treatment of a sick child to uphold the
best health care for the child. The parent of the child may disagree with taking the medication of
medical treatment. The court of law has suggested that the interest of a child and his health are
paramount rather than refusing the treatment.4 This paper aims to discuss whether there should
be a limit on such parental authority for such refusal of treatment of their child and the necessity
of various law reform for such matter.
1 Swain, Shurlee, and Margot Hillel. Child, nation, race and empire: Child rescue discourse,
England, Canada and Australia, 1850–1915. (Manchester University Press, 2017).
2 Cliff, Dylan P., et al. "Objectively measured sedentary behaviour and health and development
in children and adolescents: systematic review and meta‐analysis." (2016) Obesity
Reviews 17.4 :330-344.
3 Pearce, Anna, et al. "Barriers to childhood immunisation: Findings from the Longitudinal Study
of Australian Children." (2015) Vaccine 33.29 :3377-3383.
4 Wake, Melissa, et al. "Introducing growing up in Australia's child health CheckPoint: a physical
and biomarkers module for the Longitudinal Study of Australian Children." (2014) Family
Matters 95: 15-23.

2HEALTH CARE OF CHILDREN
Discussion
In the world, every doctor has his own personal values and beliefs in his profession.
There are specific professional values, which are imposed by the government or several Medical
Board in the individual country should be maintained by the medical professional.5 The doctors
of a hospital have been obtained a duty of taking care of their patients is the first concern and
practising the medicine effectively and safely. One of the responsibilities of the physicians to be
trustworthy and ethical during the treatment of their patient. The Medical Board of Australia has
given a code of conduct for the medical practitioners in its territory. The Good Medical Practice
Code has been described as the expectation from a doctor who is registered himself as a doctor in
the medical board of Australia.6 It has set out several rules and principles, which have
characterised as a good doctor in the medicinal practice. It has also made an explicit criterion of
professional and ethical conduct of the doctors in their professional nobles and the community of
their territory. The British Medical Association, as well as the Australian Medical Association,
have aligned several values for their doctors to the patient. The Code has complemented the
Code of Ethics of the Australian Medical Association7 and has depended with the International
Code of Medical Ethics8 and Geneva Declaration. This Code9 has also concentrated in the good
communication of the medical practitioners, which has underpinned each aspect of the good
medical practice in the community of the country.
5 Walker, Rachael C., et al. "Patient and caregiver values, beliefs and experiences when
considering home dialysis as a treatment option: a semi-structured interview study."
(2016) Nephrology Dialysis Transplantation 31.1: 133-141.
6 The Good Medical Practice Code 2014
7 The Australian Medical Association code of Ethics 2016
8 The International Code of Medical Ethics 1949
9 The Good Medical Practice Code 2014

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The Code of Ethics of the Australian Medical Association10 has described the Conflict of
interest of the medical practitioners as well as the patient. The conflict of interest has arisen in
the medical practice when a medical practitioner has entrusted of an interest of his patient in the
professional, financial or personal interests as well as the relationship with any third party other
than the patient may fall an effect to the treatment of his patient. The doctor should recognise the
potential conflict of interest, which may arise regarding the ongoing or introducing the proficient
relationship between him and his patient. In a child health care, the child should be treated as
their first treatment rather than the wish of their parent. They should maintain their code of ethics
for the treatment of the child. However, as the child is innocent and can not express their illness
and views, the parent of the child may assist the doctors for the treatment of their child. They can
understand their child in a better way than medical practitioners who are treating the child.
According to the Code of Ethics11, the doctors should be transparent and honest in their
professional regarding the monetary engagements with their patients. In a treatment of the child,
the doctors should maintain the ethics of their profession and should not do any activity, which
may deteriorate the health of the child. Children of a country are ordinarily viewed as hale and
hearty when the adult standards assess them. There should be an excessive treaty to diminish
childhood disease and death. There have a dramatic change and improvements have been
occurring all over the world in the last several decades by reducing morbidity and mortality from
various accidental causes and infectious diseases. The government has also increased the
assessment of health care of the children and reduced the contaminants of the environment by
making Centers for Disease Control and Prevention 200012. The children who are mainly from
10 The Australian Medical Association code of Ethics 2016
11 The Australian Medical Association code of Ethics 2016
12 Centers for Disease Control and Prevention 2000.

4HEALTH CARE OF CHILDREN
minority and deficient background family, are not progressing in the eye of the medical
treatment.
The case law Great Ormond Street Hospital vs. Yates 2017 has dealt with the rules
against any experimental medicinal treatment for a fatally ill child.13 In this case, Charlie Gard,
who is an infant and has taken birth with a sporadic medical condition, namely, Mitochondrial
DNA Depletion Syndrom (MDDS). As a consequence, the child was suffering from severe
cognitive and bodily debilitation. He even did not move his legs or arms and could not take
breaths without the support of a ventilation system. The doctors, as well as the parent, had
decided to withdraw the life support of the child unless the other treatment had become available.
The parent of Charlie had come to know that the doctors would do any experimental treatment to
him named ‘nucleoside treatment’ and filed a suit against the hospital committee. After a chain
of litigation in the United Kingdom Courts of law and the Human Rights court of Europe, it has
decided that the hospital had withdrawn the treatment for the best interest of the child, Charlie.
The high court of the United Kingdom had found that the child had required the best interest of
his health and should not be given any experimental medical treatment instead of taking away
the life support. Therefore, at the time of treatment of any child, the doctors should take into
consideration that they will treat him for his best interest and not for any experiment of their own
benefit.
A question has arisen in the medical treatment that whether there is any right of a parent
to refuse the treatment of their child’s health.14 The right to reject of the patient of taking any
treatment has varied patient form patient regarding their health condition. There are some
13 Great Ormond Street Hospital v Yates [2017] EWHC 1909
14 Ryan, Christopher, Sascha Callaghan, and Carmelle Peisah. "The capacity to refuse psychiatric
treatment: A guide to the law for clinicians and tribunal members." (2015) Australian & New
Zealand Journal of Psychiatry 49.4 3:24-333.

5HEALTH CARE OF CHILDREN
exceptions to the right to refuse the action of medical practitioners regarding the health issues of
the children. A legal guardian, as well as the parent, can not ignore such life-sustaining treatment
of their ward or child respectively from their medical or health care in any hospital or medical
treatment centre.15 Several parents have believed that some specific treatment may hamper their
religious beliefs, and they have discouraged such medical treatment of their children. The parents
of sick children can not be able to invoke the right to freedom in religious to refuse the treatment
of a child. Parents of a child have possessed a lot of flexibility to decide the medical care which
their child will receive from the medical practitioners. However, sometimes the refusal of the
treatment of their child may cause neglect of the child care and may increase to a fatal accident.
In a report, it has come out that there are various states where the parents have withheld the
medical care of their children in the belief of religious ground.16 It can be stated that it may not
be considered as a ‘neglect’ in the eye of law if the parent of the child has refused the medical
care and gone for the spiritual treatment. In this situation, even if the child has harmed or die, the
parent will not be liable for that refusal of medical treatment.
However, in the aforesaid situation, there should be a limitation of the parent to refuse the
medical treatment of a child, because there may be a fatal accident will arise in the life of the
child. It may cause detriment to the child’s health condition, even he may die for the refuse of
treatment. The law will not be held liable for that parent’s neglect of this refusal. This is a
limitation of the law of the land that it should be held responsible to the parent who refuses the
treatment of their child on religious beliefs. In her journal “Parental refusal of childhood
15 White, Ben, Lindy Willmott, and Shih-Ning Then. "Withholding and withdrawing life-
sustaining medical treatment." (2014) Health Law in Australia [2nd ed.]. Thomson Reuters,
Pyrmont, NSW 5:43-592.
16 Chavkin, Wendy, et al. "Conscientious objection and refusal to provide reproductive
healthcare: A White Paper examining prevalence, health consequences, and policy responses."
(2014) International Journal of Gynecology & Obstetrics 123 :S41-S56.

6HEALTH CARE OF CHILDREN
vaccines and medical treatment laws”, Parasidis said that the medical neglect had occurred as
soon as the child began to suffer to some degree which the practitioners knew the way of
treatment in the modern science, but the parent had chosen not to indulgence at all or prefer to
treat another method such as prayer to the almighty or went to any pastors.17
Part IV of the Medical Practice Act 1992 has dealt with complaints regarding medical
practitioners within the territory of Australia, especially New South Wales.18 Section 36 of this
Act19 has dealt with such unsatisfactory conduct of the medical professionals. According to this
section, the unacceptable professional conduct of any registered medical professional includes
any contravention of any provision of this Act,20 whether by doing an action or omission. The
unsatisfactory misconduct of medical practitioners may be an offence in the eye of law. The
practitioners may be prosecuted or sentenced for such misconduct to its patient or other persons
in respect to such contravention of this Act.21
Several provisions of the Children and Young Persons (Care and Protection) Act 1998
will apply for the protection of the health of a child, and the child should be treated as in the best
way.22 Section 44 of this Act23 has described that the secretary may be assumed for taking the
responsibilities to any convicted or suspected young person or child for the health care of the
child in the hospital. This section of the Act24 has protected the right of the children of health
care.
17 Parasidis, Efthimios, and Douglas J. Opel. "Parental refusal of childhood vaccines and medical
neglect laws." (2017) American journal of public health 107.1 :68-71.
18 The Medical Practice Act 1992 No 94
19 The Medical Practice Act 1992 No 94
20 The Medical Practice Act 1992 No 94
21 The Medical Practice Act 1992 No 94
22 The Children and Young Persons (Care and Protection) Act 1998 No 157
23 The Children and Young Persons (Care and Protection) Act 1998 No 157
24 The Children and Young Persons (Care and Protection) Act 1998 No 157

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The child of the territory of Australia can be competent for making their own decision of
treatment without the consent of their parent if they have possessed such sufficient intelligence,
as well as an understanding of their treatment. In the case law, Gillick vs. West Norfolk and
Wisbech Area Health Authority 1986 the court of law has stated that the children can able to
make the decisions regarding their medical and health care without the consent of their parent if
they have achieved the adequate understanding of the health.25 The court of South Australia has
upheld this judgment of this case and the government of this territory has enacted a similar
concept of the competency Gillick case. The Consent to Medical Treatment and Palliative Act
1995 has described that the child who is under the age of 16 years can able to give consent to his
or her medical treatment, whether the medical practitioner has considered that the sick child is
proficient enough to understand the scope, risks and consequences of that treatment.26
However, in that situation, the medical practitioners should examine the mental health of
the child of providing the consent of the child. In the territory of South Australia, the rule of law
has permitted the child who has crossed the age of 16 years, can able to make their own decision
for the method of treatment. It can be mentioned that the decision of that child in his or her
treatment has similar legal consequences as a decision of an adult in that territory. In a valid
Advance Care Directive, a child who is under the age of 18 years can accrue the capacity to
make any decision regarding the life-sustaining treatment of his or her own in the territory of
Victoria. However, a child of Australia who can be said to Gillick-competent is able to refuse any
medical treatment or life-sustaining.27
25 Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112
26 The Consent to Medical Treatment and Palliative Act 1995
27 Luckett, Tim, et al. "Advance care planning in 21st century Australia: a systematic review and
appraisal of online advance care directive templates against national framework criteria."
(2015) Australian Health Review 39.5 :552-560.

8HEALTH CARE OF CHILDREN
In the case law, Minister of health vs AS 2004 the court of law has decided that the
medical practitioners can override the refuse of a competent child. If the treatment of the child is
necessary for the saving from a fatal disease, which may cause the death of the child can be done
without the consent of that child.28 The treatment should be done for the best interest of the child
and fro the betterment of his or her health condition. However, the court of law has decided in
the case X vs. the Sydney Children’s Hospital Network 2013 the overriding a child decision
should be taken into consideration and not be taken frivolously by the medical practitioners.29
There are various situations where the doctors can refuse or override the desires of the
parent of the sick child when the child is very infant that the parent can not take the right
decisions. However, there are several cases and disputes have ended up in the court of law where
the doctors, as well as the parents of the child, have failed to agree about the medical treatment.30
Whether there is an argument within the parent of the child and doctors where the doctors want
to do treatment and the parents disagree or vice-versa, then the conclusion will be on the best
interest of the child and healthcare. The importance of the children will be taken into
consideration for the treatment of the child. However, the parent of the child can understand the
health condition of the child as well as the mental condition of them as the child can not express
their emotions or pain to the other persons. In a general rule, a doctor can do the treatment
without the consensus of the guardian or parent for saving the life of the child and preventing the
deterioration of the condition of the health of the child.
28 Minister for Health v AS (2004) 33 Fam LR 223
29 X v The Sydney Children's Hospitals Network [2013] NSWCA 320
30 McDougall, Rosalind J., and Lauren Notini. "Overriding parents’ medical decisions for their
children: a systematic review of normative literature." (2014) Journal of medical
ethics 40.7 :448-452.

9HEALTH CARE OF CHILDREN
Conclusion
Therefore, it can be concluded that any treatment or refusal of treatment should be done
in consideration of the best interest of the health condition of the child. The interest of the child
should be paramount than the desires or wishes of the parent, which will be the secondary
consideration at the time of treatment of a child. There are several rules and regulations in
Australia, as well as in the UK for the care and protection of the health of a child. However, the
government has to be more strict where the parent has refused for treatment in the belief of
religious matter where the child may die for the lack of treatment. There should be a law reform
regarding this matter. The doctors should not be refused for the treatment of any child;
otherwise, he will be punished for the unsatisfactory conduct as a registered medical professional
under the Medical Practice Act 1992.

10HEALTH CARE OF CHILDREN
Bibliography
Journals
Chavkin, Wendy, et al. "Conscientious objection and refusal to provide reproductive healthcare:
A White Paper examining prevalence, health consequences, and policy responses."
(2014) International Journal of Gynecology & Obstetrics 123 :S41-S56.
Cliff, Dylan P., et al. "Objectively measured sedentary behaviour and health and development in
children and adolescents: systematic review and meta‐analysis." (2016) Obesity
Reviews 17.4 :330-344.
Luckett, Tim, et al. "Advance care planning in 21st century Australia: a systematic review and
appraisal of online advance care directive templates against national framework criteria."
(2015) Australian Health Review 39.5 :552-560.
McDougall, Rosalind J., and Lauren Notini. "Overriding parents’ medical decisions for their
children: a systematic review of normative literature." (2014) Journal of medical
ethics 40.7 :448-452.
Parasidis, Efthimios, and Douglas J. Opel. "Parental refusal of childhood vaccines and medical
neglect laws." (2017) American journal of public health 107.1 :68-71.
Pearce, Anna, et al. "Barriers to childhood immunisation: Findings from the Longitudinal Study
of Australian Children." (2015) Vaccine 33.29 :3377-3383.

11HEALTH CARE OF CHILDREN
Ryan, Christopher, Sascha Callaghan, and Carmelle Peisah. "The capacity to refuse psychiatric
treatment: A guide to the law for clinicians and tribunal members." (2015) Australian & New
Zealand Journal of Psychiatry 49.4 3:24-333.
Wake, Melissa, et al. "Introducing growing up in Australia's child health CheckPoint: a physical
and biomarkers module for the Longitudinal Study of Australian Children." (2014) Family
Matters 95: 15-23.
Walker, Rachael C., et al. "Patient and caregiver values, beliefs and experiences when
considering home dialysis as a treatment option: a semi-structured interview study."
(2016) Nephrology Dialysis Transplantation 31.1: 133-141.
White, Ben, Lindy Willmott, and Shih-Ning Then. "Withholding and withdrawing life-sustaining
medical treatment." (2014) Health Law in Australia [2nd ed.]. Thomson Reuters, Pyrmont,
NSW 5:43-592.
Book
Swain, Shurlee, and Margot Hillel. Child, nation, race and empire: Child rescue discourse,
England, Canada and Australia, 1850–1915. (Manchester University Press, 2017).
Legislations
Centers for Disease Control and Prevention 2000.
The Australian Medical Association code of Ethics 2016
The Children and Young Persons (Care and Protection) Act 1998 No 157
The Consent to Medical Treatment and Palliative Act 1995