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Children, Competency and Consent to Cosmetic Surgery

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Title: Children, Competency and Consent to Cosmetic Surgery


1
Children, Competency and Consent to Cosmetic
Surgery
  • Tina Cockburn
  • QUT Faculty of Law

2
  • Medical treatment of children is an emotive
    issue involving as it does a tension between the
    wishes and interests of parents and children,
    individual autonomy and state intervention.
  • Leanne Bunney The Capacity of Competent Minors
    to Consent to and Refuse Medical Treatment
    (1997) 5 JLM 52

3
Doctors push for teenage obesity surgery Jason
Dowling and Heath Gilmore January 6, 2008, The
Sun-Herald
  • TEENAGERS as young as 14 may soon be queueing up
    for weight-reduction surgery under a radical push
    by the Australian Medical Association to tackle
    the obesity crisis.
  • Medical experts in Victoria are trialling the
    surgery on 25 teenagers aged between 14 and 18,
    with another 25 adolescents under conventional
    weight-loss programs to compare the results.
  • Dr Keegan rejected suggestions the surgery
    was an easy option for those unable to confront
    their problem. "This form of surgery is
    reversible and effective," he said. "It's not an
    option for people who just don't want to do the
    hard yards. "The surgery requires an entire team
    approach including a psychologist, dietitician as
    well as the medical team. Research suggests that
    this surgery can shift established bio-chemical
    processes for the morbidly obese."
  • Health experts said the surgery had its biggest
    impact on younger people and could have a large
    impact on life expectancy.

4
  • The AMA discourages the promotion of cosmetic
    surgery, being particularly mindful that
    advertising and other promotions which appeal to
    youth encourages people to consider cosmetic
    surgery as an easy solution to personal issues
    including body image dissatisfaction.
  • Australian Medical Association, Body Image and
    Health, 2002.

5
Children, Competency and Consent to Cosmetic
Surgery
  • Policy considerations
  • Consent
  • When is a child competent to consent to cosmetic
    surgery?
  • Reform proposals

6
What is Cosmetic Surgery?
  • Cosmetic surgery involves reshaping normal
    structures of the body using surgical and
    non-surgical techniques, it is initiated by the
    consumer to improve their appearance and
    self-esteem The Cosmetic surgery report report
    to NSW Minister for Health October 1999
  • Cosmetic procedures Operations and other
    procedures that revise or change the appearance,
    colour, texture, structure of position of normal
    body features with the sole intention of
    improving the patients appearance or
    self-esteem Medical Council of New Zealand

7
What is cosmetic surgery?
  • Queensland discussion paper Have your say
    Children and Young People using cosmetic surgery
    and solariums in Queensland, October 2007
  • Cosmetic surgery refers to invasive (procedures
    that break the skin, such as breast enlargement,
    rhinoplasty (nose surgery), surgical face-lifts,
    tummy tucks, liposuction, and collagen and botox
    injections) and non-invasive (procedures that do
    not usually break the skin, such as chemical
    peels, microdermabrasion, and laser hair removal)
    procedures performed for non-medical reasons.
    They are procedures that are performed on
    otherwise healthy people, purely for cosmetic
    reasons, not because of any medical reason.
  • However, cosmetic surgery does not include
    invasive and non-invasive procedures done for
    medical reasons, as directed by a qualified
    clinician. Procedures done for medical reasons
    could be to treat and correct physical conditions
    which cause problems for the medical,
    psychological and social well being of people.
    For example, ear surgery (otoplasty), breast
    reduction in men (gynecomastia) and corrective
    rhinoplasty (nose) surgery.
  • It does not cover
  • any procedure undertaken for medical reasons at
    the direction of a medical or other qualified
    clinical professional
  • cosmetic dentistry which is performed by
    dentistry professionals
  • tattoos and body piercing, which are not commonly
    regarded as cosmetic surgery.

8
Who is a child?
  • lt 18 years
  • eg Age of Majority Act (Qld) s5
  • "A child becomes an adult when he realises that
    he has a right not only to be right but also to
    be wrong.
  • Thomas Szasa, Hungarian-born psychiatrist, The
    Second Sin (1973) "Childhood"

9
Policy Considerations
  • Ethical Principles
  • Human Rights
  • Parental Responsibility

10
United Nations Convention on the Rights of the
Child
  • Article 3.1 In all actions concerning children,
    whether undertaken by public or private social
    welfare institutions, courts of law,
    administrative authorities or legislative bodies,
    the best interests of the child shall be a
    primary consideration.
  • Article 1 a child means every human being below
    the age of eighteen years unless, under the law
    applicable to the child, majority is attained
    earlier.
  • United Nations Convention on the Rights of the
    Child (1989), UN General Assembly Document
    A/RES/44/25

11
Best interests of the child
  • Terms of UN Convention may be used to resolve
    ambiguities in legislation and common law
  • In context of medical decision making
  • Promote childs autonomy and self determination
  • Ensure wishes given due deference and weight
  • If competent child makes a voluntary informed
    decision, decision to be respected.

12
Consent
  • Why is consent necessary?
  • Elements of consent
  • When is consent not necessary?

13
Why is consent necessary?
  • Good medical practice
  • Respect for autonomy and bodily integrity
    Marions case
  • Legal Requirement
  • Failure to obtain consent to procedure in broad
    terms may result in a trespass action Chatterton
    v Gerson Rogers v Whitaker
  • Every person being of adult years and sound
    mind has a right to determine what shall be done
    with his or her own body and a surgeon who
    performs an operation without his patients
    consent commits an assault.
  • Schloendorff v Society of New York Hospital
    (1914) 105 NE 92 per Cardozo J at 93

14
Elements of Consent
  • Capacity
  • Broad understanding of procedure to be performed
  • Voluntary
  • J Devereux The Capacity of a Child in Australia
    to Consent to Medical Treatment Gillick
    revisited? (1991) 11 (2) Oxford Journal of Legal
    Studies 283 at 284, citing I Kennedy and A Grubb,
    Medical Law Text and Materials, London 1989, 180

15
When is consent not necessary?
  • Blood transfusions
  • Transplantation and Anatomy Act 1979 (Qld) s20.
  • Emergency
  • Procedures to save or prolong life in hospital or
    institution and patient incapable of consenting
    due to mental disability
  • S52 Medical Act 1939 (Qld)

16
When is a child competent to consent to cosmetic
surgery?
  • Competency
  • Children and consent common Law (Qld)
  • Children and consent legislation (Qld, SA, NSW)
  • Children and consent law reform proposals
  • Cosmetic surgery case study

17
  • The law relating to young peoples competence
    to consent is obscure, complicated and
    piecemeal.
  • L Skene, Law and medical practice rights,
    duties, claims and defences , 2nd ed, LexisNexis
    Butterworths, Sydney, 2004, Ch 4

18
Assessing competency
  • Abilities required for competency
  • receive, understand, retain and recall relevant
    information
  • integrate the information received and relate it
    to ones situation
  • evaluate benefits and risks in terms of personal
    values
  • rationally manipulate the information in order to
    select an option, and give cogent reasons for the
    choice
  • communicate ones choice to others and
  • persevere with the choice until the decision is
    acted upon.
  • JG Wong, ICH Clare, MG Gunn, AJ Holland Capacity
    to Make Health Care Decisions its Importance in
    Clinical Practice (1999) 29 Psychological
    Medicine 437 at 439
  • Functional ability as a decision maker
  • This approach, though lacking the certainty of a
    fixed age rule, accords with experience and
    psychology. Marions case per majority at 8

19
Children and Consent Common Law
  • Incompetent children
  • Parents can consent provided acting in best
    interests of child Marions case at 27 K v
    Minister for Youth Community Services 1982 1
    NSWLR 311
  • Exception (court authority required)
  • Sterilization (cf sterilization which is an
    incidental by-product of surgery that was
    intended to cure some malfunction or disease)
    Marions case
  • Family Court welfare jurisdiction
  • Supreme Court parens patriae jurisdiction

20
Why is sterilization treated as a special case?
  • the operation is irreversible
  • it deprives a woman of a fundamental right to
    bear children
  • moral and emotional considerations mean that this
    right has great importance
  • if a court is not involved, there is greater risk
    of the matter being decided wrongly
  • it may be carried out for improper reasons
  • there is a need to protect those involved from
    legal action
  • Marions case at 39, referring to Re F 1990 2
    AC per Lord Brandon at 70-71

21
Children and Consent Common Law
  • Competent children
  • TEST capacity to consider treatment options and
    consequences Gillick Marions case
  • A competent patient is one who is capable of
    understanding the nature, consequences and risks
    of the proposed treatment and the consequences of
    non-treatment Marions case at 237
  • Consider each case on its own merits
  • rule of thumb competent from approximately 14
    years (Piaget)

22
Gillick v West Norfolk Wisbech Area Health
Authority 1986 1 AC 112
  • Mother of five girls under 16 sought a
    declaration that a Department of Health
    memorandum allowing medical practitioners to
    provide contraceptive advice and treatment to
    underage patients was unlawful.
  • Held A young girl is competent to consent to
    contraceptive advice and treatment when she
    achieves a sufficient understanding and
    intelligence to enable her to understand fully
    what is proposed. It will be a question of fact
    whether a child seeking advice has sufficient
    understanding of what is involved to give a
    consent valid in law. Until the child achieves
    the capacity to consent, the parental right to
    make the decision continues save only in
    exceptional circumstances Lord Scarman at 189

23
Secretary, Department of Health Community
Services v JWB SMB (1992) 175 CLR 218 (Marions
case)
  • Parents of a 14yr old girl with severe
    intellectual and physical disabilities sought
    authorisation for a sterilisation procedure
  • Held except where sterilisation is an
    incidental result of surgery performed to cure a
    disease or correct some malfunction parents do
    not have the power to authorise the operation.
    Family court has jurisdiction to authorise the
    procedure.
  • Power of parents to consent diminishes as childs
    capacity and maturity grows.
  • A minor can give informed consent when he or she
    achieves sufficient understanding and
    intelligence to comprehend what is proposed.
  • depends on the rate of development of each
    individual

24
Consent Legislation
  • Queensland
  • Transplantation Anatomy Act 1979 (Qld)
  • s12B parent can consent to removal of
    regenerative tissue for transplantation into
    direct family member
  • 12C child can consent if understands nature and
    effect of procedure
  • New South Wales
  • Minors (Property and Contracts) Act 1970
  • No liability in trespass
  • s49(1) if parent consents to medical treatment
    of a child under 16
  • s49(2) if child 14 years and above consents
  • Guardianship Act 1987
  • applies where gt16 and incapable of consent
    ss34(1), 36, 37, 46
  • South Australia
  • Consent to Medical Treatment and Palliative Care
    Act 1995
  • S6 person 16 years and over competent to consent
  • S12 medical practitioner may administer medical
    treatment to a child if
  • (a) the parent or guardian consents or
  • (b)  the child consents and

25
Law Reform Proposals
  • Queensland
  • Law Reform Commission Consent to medical
    treatment of young people, Discussion paper WP44
    (Brisbane, May, 1995)
  • Consent to Medical Treatment of Young People
    Report no 51, QLRC, 1996
  • draft legislation Health Care Authorisation for
    Young People Bill 1996
  • New South Wales
  • Issues Paper 24 (2004) - Minors' consent to
    medical treatment
  • Report in final stages of preparation and
    expected to be released by July 2008

26
Qld Law Reform Commission proposal
  • Under 12
  • consent sole responsibility of parents, provided
    in best interests of child
  • 12 - 15years
  • competent children can consent, parents can also
    consent, provided in best interests (parents
    cannot override consent of competent child in
    childs best interests)
  • Incompetent children parents consent provided
    in childs best interests
  • 16 and 17 years
  • if competent child can consent to exclusion of
    others (except court)
  • Incompetent children parents consent provided
    in best interests
  • Competent can understand nature and effect of
    treatment and can communicate that understanding
    in some way
  • Health Care Authorisation for Young People Bill
    1996

27
Practical Guidelines
  • Determining competence
  • Young person must have sufficient understanding
    and intelligence to comprehend in general terms
  • Nature of their clinical problem
  • Nature and purpose of the proposed treatment
  • Effects of the treatment including side-effects
  • Consequences of non-treatment
  • Other treatment options, and
  • Possible repercussions of the treatment, for
    example the consequences if parents found out.

28
Practical Guidelines (cont)
  • Assessing maturity
  • General maturity of speech and bearing
  • Ability to explain the clinical problem for which
    treatment is sought, through appropriate clinical
    history
  • Level of schooling
  • Level of independence from parental care
  • Ability to make judgements about his or her
    health.
  • Document the assessment of maturity in the
    medical record, together with factors taken into
    consideration in making decision.
  • Competency should be tested for each new
    treatment being considered and should be
    documented.
  • Consent for treatment and confidentiality in
    young people protecting patients, guiding
    doctors. Melbourne Medical Practitioners Board
    of Victoria, 2004

29
Cosmetic Surgery Codes of Practice
  • The Australian Society of Plastic Surgeons and
    the Australasian College of Cosmetic Surgery have
    advised their members to operate within
    established codes of practice that encompass the
    need for
  • a medical evaluation to ensure a patients
    suitability for the procedure and to identify
    possible risk factors or other factors that may
    result in a poor outcome
  • psychological evaluation to establish the reason
    the patient wants the procedure done and to
    identify possible psychological risk factors or
    indicators of poor outcome
  • patient education including information about the
    procedure, possible alternative treatments,
    obtaining a second opinion, information about
    complications, side-effects and expected
    realistic outcomes
  • obtaining informed consent and allowing for a
    cooling off period between the initial
    consultation and performance of the procedure.
  • http//www.health.qld.gov.au/publications/cos_surg
    _child.pdf

30
Can children consent to cosmetic surgery?
  • If Gillick competent (capable of understanding
    the nature, consequences and risks of the
    proposed treatment and the consequences of
    non-treatment)
  • yes, child can consent
  • If not Gillick competent
  • no, parents consent or court can approve
    procedure
  • Is cosmetic surgery an exceptional case requiring
    court approval?
  • As a starting point, sterilisation requires
    invasive, irreversible and major surgery. But so
    do, for example, an appendectomy and some
    cosmetic surgery, both of which, in our opinion,
    come within the ordinary scope of a parent to
    consent to. However, other factors exist which
    have the combined effect of marking out the
    decision to authorise sterilisation as a special
    case. Court authorisation is required, first,
    because of the significant risk of making the
    wrong decision, either as to a child's present or
    future capacity to consent or about what are the
    best interests of a child who cannot consent, and
    secondly, because the consequences of a wrong
    decision are particularly grave. Marions case
    per majority at 49

31
Reform Proposals
  • Qld Discussion Paper
  • Proposed legislation Qld
  • Proposed legislation other jurisdictions
  • Comments

32
Qld Discussion paper
  • Have your say Children and Young People using
    cosmetic surgery and solariums in Queensland,
    October 2007
  • This paper is only about access to solariums and
    cosmetic surgery performed on Queensland children
    and young people under the age of 18 for
    non-medical reasons. It does not cover
  • any procedure undertaken for medical reasons at
    the direction of a medical or other qualified
    clinical professional
  • cosmetic dentistry which is performed by
    dentistry professionals
  • tattoos and body piercing, which are not commonly
    regarded as cosmetic surgery.
  • No report available, but Qld health consulting
    with key stakeholders to progress proposals
  • About 300 submissions were received from mostly
    parents and young people, with 95 in support of
    greater regulation. Premier Bligh, Ban on
    Cosmetic Surgery for Teens Sunday Mail, April 6,
    2008

33
Teenagers to be barred from the surgical
quick-fix
  • TEENAGERS will be banned from having cosmetic
    surgery in Queensland from the middle of the
    year, and the state is also planning to bar them
    from solariums. It will be the first state to ban
    "unnecessary, high-risk and invasive" cosmetic
    surgery for those under 18.
  • "This is not about becoming a nanny state," the
    Premier, Anna Bligh, told Parliament yesterday.
    "I appreciate that this can be a difficult time,
    especially in a young woman's development, but to
    resort to a surgeon's blade is an adult response
    best left until one is an adult."
  • She said procedures to correct deformities would
    be allowed, along with undefined procedures to
    help a teenager's medical, psychological or
    social well-being. But "major surgery" for purely
    cosmetic reasons, including breast implants,
    would not be permitted after the laws were
    passed. "As legislators, we have a responsibility
    to ensure our youth are not resorting to surgical
    quick-fixes to improve their appearance," she
    said, "and there are no cowboys in the industry
    preying on their vulnerabilities and
    insecurities.
  • The Australian Society of Plastic Surgeons said
    it welcomed the proposed ban, and its exception.
    Its president, Howard Webster, said in a
    statement he was pleased "essential surgery" for
    fixing prominent ears, asymmetrical breasts and
    extra digits would still be permitted.
  • Meanwhile, the state's health minister, Stephen
    Robertson, said he planned to ban under-18s from
    using solariums, no matter what came out of
    today's discussions with other health ministers
    on a national approach. "We are determined to ban
    young people from this potentially harmful
    practice. Sydney Morning Herald April 18, 2008

34
Proposed legislation Qld
  • ban "unnecessary, high-risk and invasive"
    cosmetic surgery for those under 18.
  • "major surgery" for purely cosmetic reasons,
    including breast implants
  • Ban under 18s from using solariums
  • Exceptions
  • procedures to correct deformities
  • procedures to help a teenager's medical,
    psychological or social well-being
  • "essential surgery" for fixing prominent ears,
    asymmetrical breasts and extra digits

35
Proposed legislation other jurisdictions
  • Western Australia
  • fair skinned persons (skin type one) to be banned
    form using solariums
  • People under 18 to be banned from using solariums
    Radiation Control Act regulations
  • Victoria
  • People under 16 will not be allowed to use
    solariums, while 16 and 17 year olds will require
    parental consent Radiation Act 2005 regulations 1
    February 2008
  • 11. The user must not expose a person who is less
    than 16 years of age to ultraviolet radiation
    produced by a tanning unit.
  • 12. The user must not expose a client who is at
    least 16 years of age but less than 18 years of
    age to ultraviolet radiation produced by a
    tanning unit unless the clients parent or
    guardian has signed and dated the consent form
    shown in the Appendix to the Notice.
  • Cosmetic surgery proposal parental consent
    plus counselling required (ABC Lateline 31/10/07)
  • South Australia
  • fair skinned persons and those under 18 banned
    from solariums Radiation Protection and Control
    (Cosmetic Tanning Unit) Regulations 2008
  • Cosmetic surgery ban for under 18s under
    consideration
  • New South Wales
  • Cosmetic surgery proposed 3 month cooling off
    period, mandatory counselling, second opinion
  • Proposed ban on intimate body piercing for under
    16s

36
Issues for consideration
  • Protecting vulnerable children vs respecting
    autonomy
  • Certainty vs flexibility of case by case analysis
  • Fast and inexpensive vs delay and expense of
    court applications
  • Definitions eg what is cosmetic surgery, who is
    a child (18, 16, 14?), therapeutic vs
    non-therapeutic procedures?
  • Which procedures to allow
  • Procedures for medical reasons
  • procedures to correct deformities
  • procedures to help a teenagers medical,
    psychological or social wellbeing
  • Vs major surgery for purely cosmetic reasons
  • Vs unnnecessary, high risk and invasive cosmetic
    surgery
  • Professional judgement and discretion vs
    guidelines to minimise risk of incorrect
    assessment
  • Acknowledgement of role of parents
  • Piecemeal changes vs uniform reform and coherence
    in the law relating to children and consent to
    medical treatment more broadly
  • Alternatives to prohibition regulation of
    cosmetic surgery industry Codes of Conduct
    cooling off period, counselling, independent
    advice
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