Chapter 12: Children and Young People
NSW Interagency Guidelines for Child Protection Intervention
Medical examinations and treatment
Informed consent
Children with a Mental Illness
Rights of parents and guardians
Options in accommodation and treatment
Children with a family member affected by mental illness
Young people at risk of harm
Mandatory Reporters
Children in Need of Care
Legal Representation
Children and young people have rights in the same way as adults have rights. These rights include civil rights, such as equality before the law, and social and economic rights, such as entitlements to social security. In NSW legislation, a child is a person under 18 years of age.
The issue of ‘children’s rights’ has been strengthened by Australia becoming a signatory to the United Nations Convention on the Rights of the Child. Australia signed the Convention in December 1990, and by doing so, agreed to have certain standards for protecting the rights of children. The convention covers a range of issues, including child welfare, care and protection, juvenile justice, health, education and civil rights.
Because they are young and inexperienced, children are often not capable of fully exercising their ‘rights’. Thus we have certain safeguards to make sure that children’s rights are respected. For example, we have laws saying how old children must be before they can work, where they can work and what hours they can work.
NSW Interagency Guidelines for Child Protection Intervention
The NSW Government recognises that there are common features that enable consistent procedures to be developed and implemented within a good practice framework and has adopted the following principles to guide agency decisions on child protection and provide a framework for individual agency policies, practices and procedures:
- The safety, welfare and well-being of the child or young person are paramount;
- Children and young people must be given the opportunity to participate at a level appropriate to their age and development in decisions which significantly impact on their lives;
- Child protection decisions must take account of the culture, disability, language, religion and sexuality of the young person, family and carers;
- Families must be given an opportunity to participate in decisions which affect the safety, welfare and well-being of a child or young person;
- In acting to protect a child or young person, practitioners or agencies should maintain the child or young person’s relationships and sense of identity and should intervene only as far as is required to secure their safety, welfare and well-being;
- Children and young people who are unable to live with their families will be provided with an environment which meets their care, support, education and health needs;
- Government agencies will work in partnership with each other, with non-government organisations and with the child or young person and their family to secure and sustain their safety, welfare and well-being; and
- Government and non-government agencies will follow policies and practices, that staff are qualified, trained and supervised and the Working With Children Check is conducted.
Child protection is a responsibility of the whole community and one specifically shared by those government and non-government agencies which provide any form of care for children, young people and their families or which come into contact with them in the course of their work. No single agency has all the knowledge, skills or authority to safeguard a child or young person from abuse or neglect and to prosecute an alleged offender. Child protection requires the best expertise and resources available and this is only achieved by coordination. In child protection the emphasis is on the child, young person or family receiving a service so that the child or young person is safe. It is the task of agencies to coordinate their efforts to achieve a good outcome for the child and young person.
Experience has proven that coordinated responses can reduce the number of interviews a child and young person undergoes, minimise the number of persons involved in the case, enhance the quality of evidence discovered for civil litigation or criminal prosecutions, provide critical information for family services, and minimise the likelihood of conflicts among agencies with different philosophies and mandates.
These Interagency Guidelines on Child Protection are one strategy for improving cooperation and coordination across agencies in responding to a child protection case. Other strategies involve legislation, policy, organisational structures and training.
NB: These guidelines were amended in 2005. The amended document is accessible at http://www.community.nsw.gov.au/html/comm_partners/interagency_guidelines.htm.
Also, at the time of publication a new set of guidlines was scheduled for release. Please see the DOCS website to access any future versions of this document.
Medical examinations and treatment
Medical examinations and medical treatment for children must be legally authorised. A valid consent must be given for a medical examination or treatment. This is the same for adults and children. If a valid consent is not given to the doctor, then his or her actions in carrying out the examination or treatment may constitute an assault.
Medical treatment of a minor nature such as applying a Band-Aid or administering cough mixture to a child or young person does not require consent. For all other types of medical treatment (except special medical treatment and emergency medical treatment), the following consent is required:
- For a child under the age of 14 years, the consent of a parent or guardian;
- For a young person aged 14 - 16 years, the consent of the young person or parent/guardian; or
- For a young person aged 16 to 17 years, the young person's own consent (section 49, Minors (Property and Contracts) Act 1970).
The Guardianship Tribunal can provide more information about situations related to who may or may not give consent to medical treatment.
Informed consent
Consent to medical treatment must be ‘informed consent’. This means that younger people must be told what the treatment is and be old enough to understand its possible side effects and any other options to the treatment. Normally, until children are old enough to provide their own valid and informed consent to medical treatment, a parent or guardian can authorise medical treatment. However, the consent of a parent is not always possible or appropriate.
The Children and Young Persons (Care and Protection) Act 1998 and the Minors (Property and Contracts) Act 1970 legislate for the medical examination and treatment of young people in NSW. The legislation covers different types of medical treatment, and the medical examination of children in need of care and protection. Children in need of care and protection are those children where the Department of Community Services’ (DoCS) involvement is needed to safeguard or promote their safety, welfare and well being.
DoCS has a limited role in obtaining consent for medical treatment of young people but has particular powers in relation to the medical examination of children in need of care and protection. Section 173 of the Children and Young Persons (Care and Protection) Act 1998 allows a medical practitioner to examine a child in need of care and protection. An examination may be required to determine the type and extent of injuries, diagnose illness or determine necessary treatment. This provision enables DoCS to gather information during assessment or investigation and respond to the child's needs.
After the medical examination has been completed, further examination or treatment may be necessary. This requires the consent of the young person’s guardian (except if there is a life-threatening situation).
Just as children may legally be capable of giving informed consent to their medical treatment, they may also refuse consent.
The key to a child’s access to medical treatment by a doctor depends on the willingness of a doctor to accept his or her consent as a valid consent. Where a child cannot understand what is being proposed and cannot express his or her wishes, then the parent or guardian has absolute authority to consent. If the parent or guardian and child differ, the Supreme Court has the power to intervene in the interests of the child.
There is a growing and influential recognition in the law that the answer to the age of consent to medical treatment, including contraceptive advice and termination of pregnancy, is a flexible one, depending on the age or maturity of the child.
A young person may require medical or dental treatment urgently in order to save their life or prevent serious damage to their health. In these cases it is not always possible to get the consent of the young person or their parents. Section 174 of the Children and Young Persons (Care and Protection) Act 1998 allows a medical practitioner or registered dentist to carry out an emergency treatment without consent, if the treatment is required to save the young person's life or prevent serious damage to their health.
Children with a Mental Illness
The UN Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care provide specifically for the protection of minors. Principle 2 states that special care should be given to protect the rights of minors, including, if necessary, the appointment of a personal representative other than a family member.
The legislation that regulates the care and treatment of young people with a mental illness is the same as that which applies to adults, namely the Mental Health Act 1990.
Rights of parents and guardians
While there are no specific provisions that relate to the treatment of a child with a mental illness, there are a number of sections within the Mental Health Act on the procedure for notification, admission and discharge from hospital. Depending on the age of the child, the procedure differs.
If someone under 16 years is admitted to hospital as an informal patient the medical superintendent must as soon as possible notify their parents or guardian.
If a parent or the guardian of a person of 14 or 15 years of age who has been admitted to a hospital as an informal patient notifies the medical superintendent that he or she objects to the person’s receiving care or treatment at the hospital, the medical superintendent must discharge the person unless the person elects to continue as an informal patient.
Someone under 14 years must not be admitted to hospital if at, or before the time, a parent of the person has notified the medical superintendent that they object to the person being admitted.
If someone under 14 years is admitted to hospital as an informal patient and a parent objects to the care or treatment the medical superintendent must discharge the person.
Options in accommodation and treatment
Few hospitals that treat mental illness have separate facilities especially designed for children. For details regarding options, contact the Centre for Mental Health, who’s details can be found in Chapter 18.
Children with a family member affected by mental illness
Young people at risk of harm
In most instances where a parent has a mental illness, family and friends help care for the children, especially in times of hospitalisation or crisis. Sometimes this is not possible, and more formal arrangements may need to be made.
Any person who suspects on reasonable grounds that a young person is at risk of harm may call the Department of Community Services (DoCS) 24 hour Helpline on 132111. Reports can be made where concerns exist for the child arising from:
- Physical abuse;
- Neglect;
- Sexual abuse;
- Behaviours causing psychological harm;
- Parent/carer failure to provide necessary medical care; and/or
- Exposure to domestic violence that may cause serious physical or psychological harm.
DoCS can then assess the situation and where necessary take action to promote the safety and the welfare of the child.
Mandatory Reporters
People in paid employment who provide services, wholly or partly to children (aged under 16) may be mandated to report their concerns that a child is at risk of harm. Mandatory reporters include those that work in education, welfare, children's services, residential services and law enforcement.
Children in Need of Care
Where a young person is in need of care and protection, DoCS has the discretion to support and protect them. This may include organising support services for the young person and/or family, developing a case plan with the family, or seeking a temporary care arrangement with the consent of parents. DoCS can also seek a range of orders from the Children's Court. These orders include:
- An assessment order to obtain a physical, psychological, psychiatric or other assessment or medical examination of a young person;
- An assessment order for a parent (or person seeking parental responsibility) to ascertain their parenting capacity;
- The registering of a care plan with the Children's Court;
- Order for supervision;
- Order for the provision of support services;
- Order for contact;
- Order for re-allocation of parental responsibility; and/or
- Emergency care and protection to remove a child or young person from immediate danger.
In addition to this, both DoCS and Police have powers to enter premises and remove a child from immediate danger with or without a warrant.
Legal Representation
Children have the same rights as adults to independent legal representation under the Mental Health Act.
Legal representation is almost exclusively provided by the Legal Aid Commission through the Children’s Legal Service (CLS). The CLS employs over 15 children’s solicitors to provide specialist legal representation to children appearing at Cobham, Campbelltown, Lidcombe and Bidura. The CLS also runs the Under 18s Hotline, the Youth Drug Court and the Juvenile Justice Centre Visiting Legal Service funded by the Department of Juvenile Justice.