Page 3703 - Week 08 - Friday, 24 August 2012
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A procedure that leads to reproductive sterilisation can be performed by a medical practitioner with the consent of the patient or, where the patient is unable to consent because of a legal disability or an impairment of their capacity to consent, with the consent of a relevant court or the ACT Civil and Administrative Tribunal. Procedures may be performed without consent in situations of medical emergency or necessity.
It is assumed that the question seeks information about applications for consent to medical procedures that lead to reproductive sterilisation of women and girls who are not themselves competent to give the required consent.
Girls may not be able to give the required consent because they are not competent minors and therefore under a legal disability. The existence of an intellectual or physical disability is not necessarily relevant.
(a) Information about the number of applications for consent to medical procedures that lead to reproductive sterilisation of children and young people under 18 years of age is not available to the ACT Government because such applications are usually made to the Family Court of Australia. While in theory applications can be made to ACT courts, the Government is not aware of such applications being made to ACT courts in practice.
Information about the number of applications for consent to medical procedures that lead to reproductive sterilisation of female adults who are not competent to give the required consent, is not available. Such applications are made to the ACT Civil and Administrative Tribunal under the Guardianship and Management of Property Act 1991 (GMP Act). They are recorded by the ACAT as applications for consent to a “prescribed medical procedure”. The data collection does not distinguish between prescribed medical procedures for reproductive sterilisation or a hysterectomy and other prescribed medical procedures.
(b) The Health Directorate does not collect specific data on the number of women/girls with disabilities who undergo sterilisation procedures.
(2) The answer to parts (a) & (b) is as follows:
Sterilisation can be performed at any time by a medical practitioner with the consent of a competent minor or adult and without consent in cases of medical emergency or necessity. These are established common law principles. Medical professionals who seek to perform the procedure must assess and satisfy themselves of the capacity of the patient to consent, or that it is necessary to immediately carry out the procedure to preserve the life or health of the patient.
Children and Young People
Applications to authorise sterilisation and other ‘special medical procedures’, such as gender re-assignment for minors who lack capacity to consent, are made to the Family Court of Australia. The Family Court considers such applications in accordance with its Rules and procedures and determines capacity to consent in accordance with common law principles relating to the capacity of minors to consent to medical treatment.
When a request is made of a health professional to carry out a procedure leading to reproductive sterilisation of an adult, and the health professional assesses that the patient is not competent to consent, the procedure can only be carried out in the ACT with the consent of the ACAT.
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