Page 824 - Week 02 - Thursday, 23 February 2012
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Essentially, the legislation states that if a person cannot give their own consent (if they have an “impaired decision making ability”) for a prescribed treatment, an ACAT order is required for such a treatment.
In relation to young women under 18 years of age, the effect of the (Marion’s Case) decision is, in summary, that parents do not have power to consent to a medical procedure that leads to sterilization of any child (i.e. a person under 18 years) – regardless of whether the child has a disability. Where sterilization is sought for children with a disability, consent can only be given by a Court. In the ACT both the ACT Supreme Court and the Family Court of Australia may give consent to sterilization.
The Family Court is most commonly used for applications such as these rather than the Supreme Court. ACT Health would not normally be involved in these cases unless it is proposed to carry out the sterilization within the public health system. The Public Advocate’s office is usually involved in cases in either Court. Legal Aid ACT can also be involved in applications for orders by arranging for an Independent Children’s Lawyer for the child. The Family Court may have a practice direction or formal protocol for these cases. The number of applications in the ACT was very small compared to the numbers in other jurisdictions.
(3) The Government’s response to the five recommendations made by the Sterilisation of Women and Girls with Disabilities: A Briefing Paper, is as follows:
In June 2011 the International Federation of Gynaecology and Obstetrics (FIGO) issued new guidelines of female contraceptive sterilization and informed consent. The following recommendations expand on these guidelines with specific considerations for women and girls with disabilities. These recommendations should be reflected in laws and policies governing sterilization practices as well as in other professional guidelines and ethical standards.
Recommendation 1
The free and informed consent of the woman herself is a requirement for sterilization.
a) Only women with disabilities themselves can give legally and ethically valid consent to their own sterilization. Family member (including spouses and parents), and/or government or other public officers, cannot consent to sterilization on any woman’s behalf.
b) Perceived mental incapacity, including medically or judicially determined mental incapacity, does not invalidate the requirement of free and informed consent of the woman herself as the sole justification for the sterilization.
The Government’s response to this recommendation is that the recommendation takes no account of the severity of the intellectual disability. It is unrealistic to expect a girl with the intellect of a one year old to give birth to and care for a baby.
Recommendation 2
As part of any process to ensure fully informed choice and consent, women with disabilities must be provided with information that sterilization is a permanent procedure and that alternatives to sterilization exist, such as reversible forms of family planning.
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