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This tool has been developed to guide the Department of Communities and Justice (DCJ), NSW Health, and designated non-government agency staff when consent for medical and dental treatment is required for children and young people:
The schedule below provides guidance for practitioners as to when the consent of each of the following persons is required for medical and dental treatment:
In instances where a specific medical and dental treatment is not included in the schedule, DCJ can contact their Legal Department for advice and NGOs their local Child and Family District Unit (CFDU). This tool should be read in conjunction with the factsheet Consent for medical and dental treatment for children and young people in statutory OOHC.
(*See DCJ website Types of care for more information about different types of care arrangements including statutory OOHC.)
A Mature Minor is a child or young person who can independently consent to their own medical or dental treatment. A Mature Minor will be assessed by a medical practitioner as having a sufficient level of understanding, intelligence and maturity to fully understand proposed medical treatment.
The term Mature Minor is often used interchangeably with the term Gillick Competent*. If a Mature Minor has capacity to consent to their own treatment, the consent of the authorised carer or DCJ delegate is not required.
There is no set age at which a child or young person may be considered a Mature Minor and any assessment may depend 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 it is in the Mature Minor’s best interests**.
It is not the responsibility of the child or young person’s caseworker or carer to make this assessment. If a child or young person is assessed by a medical practitioner as lacking the capacity to consent to medical treatment, their carer may provide consent unless the treatment is of a kind where consent is required as an exercise of the Minister’s parental responsibility. In these instances it may be still appropriate for the child or young person to be involved in discussion and decision making about their treatment.
(* The NSW Consent to Medical and Healthcare Treatment Manual advises the legal position relating to a Minor’s capacity to consent was established by an English case known as Gillick. Gillick was approved by the High Court of Australia in a case known as Marion’s case. The Gillick case holds that a child’s capacity increases as they approach maturity or in other words, the authority of a parent decreases as their child’s capacity increases. (Refer to Section 8: Minors: page 43). ** The NSW Consent to Medical and Healthcare Treatment Manual advises that in instances where a Minor has capacity to consent to treatment that is in their best interests but refuses, a Health practitioners may seek legal advice from the Ministry of Health’s Legal Branch if necessary. (Refer to Section 8: Minors page 43-46).)
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.
An authorised carer has care responsibility for the child or young person. Care responsibility includes the authority to consent to some medical and dental treatment as reflected in the schedule. Care responsibility is not the same as parental responsibility.
Authorised carers can consent to most day-to-day medical and dental treatments for children and young people in their care if the child or young person lacks the capacity to consent for themselves. 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 medical or dental treatment.
This ensures that children and young people receive appropriate and timely medical and dental treatment, supported by their carer who knows and best understands their needs.
A DCJ delegate’s consent for medical and dental treatment is required as an exercise of parental responsibility in circumstances where:
In these instances, a DCJ delegate is required to provide consent in accordance with Delegation Schedule X of the Children and Young Persons (Care and Protection) Act 1998.
There may also be certain types of medical or dental treatment for which the consent of a delegate exercising parental responsibility is required in addition to the consent of the Mature Minor or authorised carer. This is reflected in the schedule below.
Barnardos has also been delegated certain aspects of the Minister’s parental responsibility for some children and young people in OOHC. Barnardos can exercise this parental responsibility in accordance with their deed of delegation.
Where the schedule reflects that a Mature Minor can consent to their medical or dental treatment, there is no need for the authorised carer or a delegate exercising parental responsibility to provide consent. However, if the child or young person is not considered a Mature Minor, consent should be sought from the corresponding column to the right. For example, if a child is not considered to be a Mature Minor, then consent can be obtained from the authorised carer or Barnardos where a ‘yes’ is indicated.
The column reflecting whether DCJ consent is required indicates whether consent is also required from a DCJ delegate (as an exercise of parental responsibility or in accordance with policy). For example, if this column indicates ‘yes’ then consent is also required from DCJ in addition to the consent of the Mature Minor or authorised carer.
Action: the authorised carer must immediately notify the designated agency with supervisory responsibility for the placement, if a child is prescribed a psychotropic drug**.
Psychotropic medication is any prescribed medication which affects cognition, mood, level of arousal and behaviour***.
There is also a requirement that a Behaviour Support Plan is prepared if this drug is prescribed. This needs to be approved by a principal officer of the designated Agency.
The administration of a drug of addiction is an offence under s175(1) of the Care Act unless an exemption applies.
Note: There is a general exemption provided by the Secretary to enable administration to a child of dexamfetamine, lisdexamfetamine and methylphenidate ("Ritalin") for the treatment of attention deficit hyperactivity disorder ADHD)^ .
Dental surgery (major) – urgent
Where a dental practitioner certifies in writing that the surgery needs to be carried out as a matter of urgency, in the best interest of the child or young person.
Dental surgery (major) – non-urgent – on advice of dental practitioner
May involve use of general anaesthetic or conscious intravenous sedation
DCJ delegation for children who are not mature minors: MCS
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
Emergency Medical Treatment
This applies only to treatment where a medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life or to prevent serious damage to his or her health.
Emergency Medical Treatment can be administered without the consent of the child or young person or their parent under s174 and 175(2)(a) of the Children and Young Persons (Care and Protection) Act 1998 (Care Act)
(*Barnardo’s exercises the powers of Parental Responsibility (PR) under the Deed of Agreement. **Section 26(1), Children and Young Persons (Care and Protection) Regulation 2012. ***DCJ Behaviour Support in OOHC Guidelines (2017). ^See General Exemption Order signed by the Secretary on 22 September 2020 pursuant to section 175(4A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - https://dcj.nsw.gov.au/documents/service-providers/out-of-home-care-and-permanency-support-program/health-and-education-pathways/General-Exemption-Notice-2018.pdf (PDF, 163.7 KB) . ^^Urgent medical treatment (s157 (1)(b), Children and Young Persons (Care and Protection) Act 1998 ) is not defined in the legislation. It may include but is not necessarily limited to circumstances where delaying treatment in order to seek consent from DCJ would cause the child unreasonable distress or the child would be in severe pain as a result of the delay).
DCJ delegation for children who are not mature minors: MCS
Action: Identify any concerns as to the use of contraception and use the online Mandatory Reporter Guide (MRG) to determine whether risk of significant harm is suspected. Report suspected ROSH to the Child Protection Helpline on 132 111 (open 24 hours/7 days) e.g. sexual partner which does not meet criteria for adolescent consensual peer sex.
Share information with DCJ under Chapter 16A as appropriate***
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
DCJ delegation for children who are not mature minors: MCS
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
DCJ Delegation: Secretary
For mature minors: DCJ consent is required in addition to the consent of the mature minor.
DCJ Delegation for children who are not mature minors: MCS
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
DCJ Delegation for children who are not mature minors: DCS or Director Metro Intensive Support Services
For mature minors: Barnardos/DCJ consent is not required. However decisions relating to treatment should be discussed with the caseworker under 16A.
DCJ delegation for children who are not mature minors: MCS
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
DCJ delegation for children who are not mature minors: DCS or Director Metro Intensive Support Services.
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
DCJ delegation for children who are not mature minors: MCS
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
DCJ delegation for children who are not mature minors: MCS
Identify any concerns as to the circumstances surrounding the pregnancy and use the online Mandatory Reporter Guide (MRG) to determine whether risk of significant harm is suspected. Report suspected ROSH (e.g. concern about sexual abuse) to the Child Protection Helpline on 132 111 (open 24 hours/7 days).
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
DCJ delegation for children who are not mature minors: MCS
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
DCJ delegation for children who are not mature minors: MCS and MCW
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework
DCJ delegation for children who are not mature minors: MCS
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
The Guardianship Division of the NSW Civil and Administrative Tribunal, Family Court of Australia or Supreme Court must authorise this procedure for minors (0-18 years old).
DCJ Delegation: DCS after consent has been given by the tribunal/court.
The administration of a drug of addiction is an offence under s175(1), Children and Young Persons (Care and Protection) Act 1998 unless an exemption applies or the NSW Civil and Administrative Tribunal consents to the treatment^.
Note: The general exemption provided by the Secretary permits the administration to a child of any drug of addiction for the treatment of cancer; and dexamfetamine, and methylphenidate for the treatment of narcolepsy^^.
The person who holds parental responsibility must also consent to the treatment commencing.
DCJ Delegation: Legal advice must be obtained on matters regarding gender affirming health care for all children in care as careful consideration is required before the relevant delegate can consent to treatment.^^^
Medical and Forensic examination for children and young people who are victims of violence, abuse and neglect includes the taking and analysis of samples and the use of any machine or device that enables or assists in the examination of a person.
Medical and Forensic examination for children and young people who are victims of violence, abuse and neglect includes the taking and analysis of samples and the use of any machine or device that enables or assists in the examination of a person.
For young people over 16 years, there are 2 parts to the consent for a medical forensic examination:
1. Consent to be examined
2. Consent release information to Police.
For children under 16, if consent is given to complete an examination, samples and other forensic evidence are taken and released automatically to the police (for which temporary hospital storage is not an option). For young people over 16, procedure includes a temporary hospital storage option for Sexual Assault Investigation Kits if they are undecided about releasing to the police*^.
DCJ Delegation if child is not a mature minor: MCS
Where health clinicians require urgent consent for a medical forensic examination after hours contact the Child Protection Helpline on 132 111 (open 24 hours/7 days).
The Helpline should ensure that calls are directed to the After Hours Response Team Manager Client Services.
For mature minors: Barnardos/DCJ consent is not required.
Use the online Mandatory Reporter Guide (MRG) to determine whether risk of significant harm is suspected. Report suspected ROSH to the Child Protection Helpline.
Consider sharing information with DCJ under Chapter 16A to inform holistic casework.
For mature minors who are not at suspected risk of significant harm or information is not shared with DCJ under Chapter 16A, the young person should be supported to speak to their caseworker about any experiences of assault and health care received
DCJ Delegation if child is not a mature minor: MCS
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework
DCJ Delegation if child is not a mature minor: MCS – consent should be based upon medical evidence, consideration of risks and benefits, cultural and family input.
For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework which may include consultation with the birth family.
All children in OOHC are required to have a Health Management Plan (HMP).
A recommendation that a child requires Therapeutic Psychological Support should be included in their HMP developed by their local OOHC Health Coordinator through their participation in the OOHC Health Pathway Program.
The caseworker should ensure this Plan is shared with the child’s carer and recommendations incorporated into the case plan. The caseworker is responsible for ensuring the HMP is implemented.
For mature minors: Health workers and carers should support the young person to inform their caseworker to support holistic casework.
All children in OOHC are required to have a Health Management Plan (HMP).
A recommendation that a child requires Allied health services should be included in their HMP developed by their local OOHC Health Coordinator through their participation in the OOHC Health Pathway Program.
The caseworker should ensure this Plan is shared with the child’s carer and recommendations incorporated into the case plan. The caseworker is responsible for ensuring the HMP is implemented.
For mature minors: Health workers and carers should support the young person to inform their caseworker to support holistic casework.