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01 November 2019

Navigating the system

Personal Injury, Workers Compensation, Motor Vehicle Accident
New South Wales

Asked

Personal injury – Issues of capacity, consent and authority

We are acting for a plaintiff in a personal injury matter who is under 18 and has suffered a serious brain injury. There are capacity issues due to both age and the injury. The client’s mother is the tutor in the proceedings.

The client’s mother is having administrative issues accessing medical records and providing direction for treatment. She has been advised that she needs to put in place a power of attorney and enduring guardianship. What are the mother’s options?

Answered

Thank you for the question.

Consent to medical treatment for minors and authority to access health information about minors are two distinct issues.

The common law has long assumed that a person under 18 years of age did not have the capacity to make a decision to consent to medical treatment on their own behalf. However that position changed with Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 which was followed by the High Court of Australia in Department of Health and Community Services v JWB & SMB (Marion’s case) [1992] HCA 15. These cases established the right of a minor to make, or at least contribute to, their own medical decisions. However, where the minor in question also lacks capacity due to a disability it seems unlikely the same considerations would apply.

Generally a parent is entitled to access their child’s medical records on the basis that they have parental responsibility under the common law and the Family Law Act 1975 (Cth). Denying access to records without a valid reason may give rise to a complaint to the Office of the Australian Information Commissioner. However the policies or procedures specific to an organisation also need to be consulted and should be followed. For example, under the My Health Record policy, parents of children 14 to 17 years of age no longer have access to their My Health Record unless the child invites them.

In relation to both consent and authority issues, the NSW Civil and Administrative Tribunal or the Supreme Court can appoint a guardian and financial manager under the Guardianship Act 1987 (NSW) for a person with a decision making disability. It would seem that the mother here should make such an application, as a guardianship and a financial management order are likely to be needed in any event.

Further, in relation to obtaining medical records for the purpose of the existing litigation, pursuant to r 7.15(6) of the Uniform Civil Procedure Rules 2005 (NSW) the mother as the tutor can do anything that the rules allow or require a party to do in relation to the conduct of the proceedings. This would include issuing subpoenas to obtain medical records where necessary.

Regards

Mentor