Sterilisation and Other Medical Procedures on Children
A report to the Attorney-General prepared by the Family Law Council November 1994
Commonwealth of Australia 1994
ISBN 0 644 42721 3
Contents
The Family Law Council
Recommendations
1. Background
2. Sterilisation
3. The Legal Framework
4. Criteria for Making Decisions
5. The Decision Making Process
Appendices
A. LIST OF PERSONS MAKING SUBMISSIONS
B. HOSPITAL MORBIDITY DATA
C. THE VICTORIAN GUIDELINES
SELECTED BIBLIOGRAPHY
The Family Law Council
The Family Law Council is a statutory authority which was established by section 115 of the Family Law Act 1975. The functions of Council are set out in sub-section 115(3) of the Family Law Act which states:
It is the function of the Council to advise and make recommendations to the Attorney-General, either of its own motion or upon request made to it by the Attorney-General, concerning -
(a) the working of this Act and other legislation relating to family law;
(b) the working of legal aid in relation to family law; and
(c) any other matters relating to family law.
Recommendations
Recommendation 1 (para 3.67)
Council recommends that:
(a) There should be a new division in the Family Law Act regulating sterilisation of young people.
(b) The legislation should provide that it is unlawful to sterilise a child under 18 years except in circumstances prescribed.
(c) Any sterilisation must be authorised under the legislation. The consent of the child and/or of her/his parent(s), is not sufficient.
(d) The legislation should provide penalties for the performance of unauthorised sterilisation procedures. The penalties should apply to those performing, or arranging the performance of, such procedures. Those penalties should be no less rigorous than those currently provided for under section 35 of the Guardianship Act 1987 (NSW).
(e) The legislation should also provide children taken outside Australia for the purpose of sterilisation with the same protection as they would have in Australia.
Recommendation 2 (para 3.71)
Medical procedures, other than sterilisation, should continue to be governed by the general provisions of the Family Law Act. No additional legislation is currently considered necessary in view of the Australian cases to date. Council recommends that this situation continue to be monitored.
Recommendation 3 (para 4.53)
(a) Council proposes a three stage decision-making process to govern consideration of applications for authorisation of sterilisation. First, the legislation would indicate four situations in which sterilisation could never be authorised. These are :
· sterilisation for eugenic reasons;
· sterilisation purely for contraceptive purposes;
· sterilisation as a means of masking or avoiding the consequences of sexual abuse; or
· sterilisations performed on young women prior to the onset of menstruation, based on predictions about future problems that might be encountered with menstruation.
(b) The legislation should provide that no person under the age of 18 shall be sterilised unless the procedure is necessary to save life or to prevent serious damage to the person's physical or psychological health.
(c) In deciding whether there is serious danger to a person's physical or psychological health the decision maker must have regard to:
A: Whether the feasibility of less permanent means of contraception has been explored, where relevant; and
B: an evaluation of the person's response to training in menstrual management
If, at this stage, a decision maker is inclined to approve the application, s/he must not do so unless performance of the procedure would be in the child's best interests.
Recommendation 4 (para 5.47)
The Family Law Council recommends that:
Jurisdiction
(a) The Family Court of Australia should be given power to hear applications under the proposed new provisions of the Family Law Act in all States and Territories in respect of all applications for sterilisation relating to children under 18 years of age.
(b) Only specially trained judges should hear sterilisation applications.
(c) It should be the policy that a court hearing of an application should occur only after all other options have failed to produce a satisfactory outcome for the parties.
Counselling and advice to applicants
(d) Specialist counselling and advisory services should be made available to applicants and children in relation to all medical treatments which may or will result in sterilisation, and in relation to the alternatives to such treatment. Wherever possible protocols should be drawn up which make full use of existing State or Territory facilities and personnel.
(e) Specially trained officers of the court should be available to advise and assist applicants and the court with the provision of information and the gathering of evidence. They should liaise with appropriate State and Territory services and personnel.
Guidelines
(f) Guidelines should be prepared and promulgated for the proper counselling of children and their parents/guardians concerning all of the implications of medical treatments which may, or will, result in sterilisation. The guidelines should set out requirements for the notification of such treatment to an "appropriate authority", such as a specially designated registrar.
(g) The "appropriate authority" should be a specially appointed officer of the Family Court who should be responsible for all administrative aspects of sterilisation applications (including record keeping) in relation to persons under 18 years of age throughout Australia.
(h) Any person under the age of 18 years who is the subject of an application for sterilisation must have independent legal representation in the event of a court hearing.
(i) The cost of legal representation for the child and a parent/guardian applicant and all other costs associated with the application should be met by the Commonwealth Government.
1. Background
Introduction
1.01 In recent years, the courts in Australia, as in other countries, have been increasingly called upon to make decisions involving medical issues. The types of matters which have come before English and Australian courts have been varied and diverse: they have included disputes about blood transfusions[1], prescription of contraceptives,[2] termination of pregnancy,[3] gender re-assignment,[4] treatment of a young woman with anorexia nervosa,[5] back treatment[6] and heart surgery on a child[7].
1.02 By far the largest volume of medical matters, particularly in Australia, has involved applications for sterilisation, most commonly involving young women with intellectual disabilities. The Family Court of Australia, which has a broad parens patriae (welfare) jurisdiction, has been approached on a number of occasions to consider such cases.[8] Some States (SA and NSW) have established Guardianship Boards to assist decision making in cases involving medical treatment (including sterilisation) for people with disabilities. In NSW, the Guardianship Board is empowered to consider applications involving people 16 and over, while in SA, no age limit is mentioned in the legislation. In other States and Territories (Victoria, Queensland, WA, Tasmania, the Northern Territory and the ACT), the Guardianship Boards have jurisdiction to make decisions regarding adults. By contrast, the Family Court generally deals with young people under 18.
1.03 At the same time as these questions have begun to confront the courts, increasing attention has been focussed on the rights of children. The Convention on the Rights of the Child 1989 was signed by Australia in 1990. Partly as a response, questions about children's rights have gained some prominence in recent years.
1.04 In the past, major medical and surgical procedures on children have generally been consented to by the child's parents or guardians and/or the child, where the child is competent to decide,[9] in consultation with others, including medical professionals. In 1992, the High Court of Australia decided, in a case involving a child with severe disability, which has come to be known as Marion's Case, that neither the child nor the child's parents may consent to a medical procedure involving sterilisation (other than a sterilisation which was a "by-product of surgery appropriately carried out to treat some malfunction or disease", such as removal of the ovaries or testes in the case of cancer). The High Court decided that the Family Court of Australia had jurisdiction to make such decisions.
1.05 In April 1994, the High Court decided in P v P[10] that the jurisdiction of the Family Court in such matters was not necessarily restricted by the limits placed on sterilisation by state laws such as the Guardianship Act1987 (NSW). These two decisions are discussed in more detail in Chapter 3.
Terms of reference
1.06 The Family Law Council's inquiry into sterilisation and other medical procedures on children was initiated against the background of the above developments (though prior to the referral to the High Court of the case of P v P). In October 1992, following the decision in Marion's Case, the then Minister for Justice, Senator Tate, referred the following questions for Council's consideration:
1. What Commonwealth and/or State legislative amendments are necessary to regulate the sterilisation of children under the age of 18 years?
2. What principles should govern decisions about whether a sterilisation should proceed?
3. Whether determinations on sterilisation should be made by existing courts or tribunals, or whether a new body should be established to make these decisions?
4. Whether uniform legislation on sterilisation of children should be introduced by the Commonwealth and the States?
5. What penalties are appropriate in the event that a child is sterilised without the authorisation required by law?
The Medical Powers Committee
1.07 The Family Law Council established a committee, called the Medical Powers Committee, to examine the issues involved, to consult on Council's behalf with the public and interest groups and to prepare a report to the Attorney-General for Council's consideration.
1.08 The members of Council's Medical Powers Committee are:
Professor Regina Graycar, Convenor - Associate Professor of Law, University of NSW, Sydney NSW. Family Law Council Member.
Professor Frank Bates, Professor of Law, Newcastle University, Newcastle NSW. Former Family Law Council Member.
Ms Myolene Carrick, Catholic Social Response, Brisbane, Queensland. Former Family Law Council Member.
Ms Margaret Harrison, Family Court of Australia, Melbourne, Victoria. Family Law Council Observer.
Mr Nick O'Neill, President, NSW Guardianship Board, Sydney, NSW.
Professor Brent Waters, Professor of Psychiatry, University of NSW, Sydney, NSW.
Ms Jane Woodruff, Chief Executive Officer, Autistic Association NSW, Sydney, NSW.
Mr Bill Hughes, Director of Research, Family Law Council, Canberra, ACT.
The Family Law Council
1.09 Members of the Family Law Council at the time of production of this report were:
The Hon Justice John Faulks Chairman
Ms Jenny Bedlington
Dr Nigel Collings
Associate Professor Regina Graycar
Ms Louise Hansen
Mr John Hodgins
Ms Michelle May QC
Mr Richard Morgan
Ms Patricia Moroney
The Hon Justice W B Treyvaud.
Outline of this report
1.10 This report addresses the issues of sterilisation and other medical procedures on children under the following headings:
- Introduction and the consultation process
- Sterilisation
- The legal framework
- Criteria for making decisions
- The decision making process
The issues
1.11 The fundamental issues raised by the Minister's terms of reference are:
· Should it ever be permissible to sterilise a child?
If so:
· Who should be responsible for making such decisions?
· How should such decisions be made?
1.12 Medical procedures generally. Until relatively recently, courts or tribunals have not generally been involved in making decisions about medical procedures on children. A series of cases heard in the Family Court of Australia has sought to clarify the issue of who, if anyone, could authorise the sterilisation of a child. Since those cases were heard, and the High Court decided on this issue in Marion's Case, a number of other questions have been raised about the relative roles of children, parents and the Family Court in authorising medical procedures.[11] In other jurisdictions, courts have been approached to authorise a variety of medical procedures on children, such as feeding a sixteen year old girl suffering from anorexia nervosa.[12]
1.13 While the Council was asked specifically to consider sterilisation, following the High Court's decision in Marion's Case, Council's examination of the issue necessarily took place in the context of looking at the legal regulation of all medical interventions involving children. For reasons elaborated on in Chapter 3, Council has concluded that sterilisation is a special case warranting the establishment of a separate scheme of legal regulation. However, Council has also considered the issue of appropriate safeguards in relation to other forms of medical treatment on children in the course of this inquiry.
1.14 The Family Law Council considers that the law should provide a clear, comprehensible and publicly acceptable framework for guiding decisions about whether to sterilise a child. In this report, Council recommends that legislation be enacted which makes it unlawful for a person to sterilise a child, except in the limited circumstances provided for and set out in that legislation. Clear and precise statutory guidelines are considered necessary to ensure that any such decisions are made consistently with human rights principles and in a way that can be clearly and easily understood. This can, in Council's view, best be achieved if all decisions about sterilisation are made within a statutory framework which clarifies the existing confusing array of provisions and ensures that a consistent national approach is adopted for the protection of all Australian children.
Public consultation
1.15 Council issued a Discussion Paper in October 1993 in which it sought public comment on a number of issues relating to human rights aspects of the sterilisation of children and the proper role of the law in regulating such procedures. Sixty four submissions were received in response. Persons and organisations making submissions are listed in Appendix A of this report. Council wishes to acknowledge the assistance it obtained from those submissions in the drafting of this report. The contributions of those who responded added greatly to Council's understanding of the issues and assisted in its formulation of the final recommendations.
1.16 This section of the report focusses on several of the questions raised in the Discussion Paper and illustrates the answers respondents gave by reference to extracts from a number of the submissions received. The conclusions reached by Council as a result of the consultation process are also included. Further argument and documentation and final recommendations are set out in successive chapters.
1.17 Whether sterilisation of children should be prima facie unlawful. The Discussion Paper asked whether sterilisation of a child should be prima facie unlawful, or whether exceptional or specific circumstances might justify its authorisation.
1.18 There was overwhelming endorsement of the view that sterilisation of a child must be confined to exceptional circumstances or as a last resort. Some of the comments made were:
...as a general rule sterilisations should not be carried out on children unless for a clear therapeutic purpose or in exceptional circumstances. [Law Council of Australia] [3]
We believe that a child should only be sterilised or subjected to an intrusive medical intervention if their life is at risk without such treatment. [Lotus Counselling Service] [12]
I argue in principal, that sterilisation/hysterectomy should be avoided strenuously - with every effort to achieve comfortable management of menses and reliable contraception by non-invasive means. [A Paediatrician] [15]
We accept that it should be permissible to sterilise a child, but that in all circumstances, sterilisation must be considered to be the action of last resort. [Australian Association of Social Workers (NSW)] [20]
The right of a child to maintain physical integrity and preserve the ability to procreate is unquestioned and is clearly the starting point. Our Family Law legislation enshrines the need to protect and promote the welfare and best interests of the child. We recognise there will be rare circumstances in which sterilisation would best protect and promote that welfare and those interests...[Legal Aid Commission of Victoria] [21]
The Department [of Family Services and Aboriginal and Islander Affairs (Qld)] suggests that the sterilisation of children should only occur if it is the outcome of the least restrictive procedure for treating a condition or disease which is threatening the young person's life or long term health. [25]
In general [the Public Guardian's Office WA] fully supports the notion that irreversible and invasive surgery should be a last resort. [28]
[The National Children's and Youth Law Centre] believes that sterilisation should only occur after exhaustive investigation, where close scrutiny is given to all aspects of the individual's case. [31]
[Intellectual Disability Rights Service] believes that sterilisation operations should be permitted on children but only in those cases where the operation is necessary to save the child's life or to prevent serious damage to the child's health. [32]
It is the Human Rights and Equal Opportunity Commission's submission that the status quo for children with a disability, as with all children, is that they should not be sterilised. The common law, municipal statutory law, international human rights instruments and international comparative law are uniform in their underlying principle, which is that sterilisation of a child is to be an uncommon last resort subject to the strictest legal principles and procedures. [41]
[The Queensland Law Society] support the view expressed by the Council that subject to the two exceptions, namely, there being a valid authorisation or the procedure being performed as a by-product of surgery appropriately carried out to treat some malfunction or disease, any procedure which results in the sterilisation of a person under the age of 18 should be unlawful. [45]
It is accepted that sterilisation can occur as a consequence of treating a life threatening condition. Sterilisation of a child in any other circumstances should only be permissible for compelling health reasons (physical or mental) when expert opinion indicates that, on balance, such a course would advance the child's welfare. [Law Institute of Victoria] [47]
...minors with a mental impairment should only be sterilised as a matter of last resort, to save life and permanent damage [or] in response to existing rather than anticipated problems. [Mental Health Legal Centre] [59]
1.19 The Australian Catholic Bishops Conference took the view that sterilisation should not be permitted in any circumstances. The bishops said:
We reject the proposition that sterilisation per se is an appropriate medical intervention in the life of a child and one which fosters his or her welfare. An invasive medical procedure which removes a healthy organ or organs from a child cannot be said to be for the welfare of that child. [52]