Medical and Dental Consent Tool

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Introduction

This tool is to guide DCJ, NSW Health, and designated non‐government agency staff in making health decisions on behalf of children and young people in out‐of‐home care (OOHC). It outlines who has authority to give consent for a range of medical and dental treatments for children and young people:

• who reside in a foster care arrangement; and
• for whom the Minister for Families and Communities (the Minister) holds all aspects of parental responsibility, or some aspects of parental responsibility which includes consent to medical treatment.

Authorised Carers can consent to many day‐to‐day medical and dental treatments for the children and young people in their care. This ensures that these children and young people receive appropriate and timely medical and dental treatment, supported by their carer who knows and understands their needs best. In most other circumstances, consent must be obtained from DCJ. For certain children and young people whose placement is managed by Barnardos, parental responsibility for medical and dental consent remains with Barnardos.

An authorised carer is defined under s137, Children and Young Persons (Care and Protection) Act 1998 (the Act). An authorised carer has care responsibility for the child or young person. Care Responsibility is defined in s157 of the Act and includes a number of consents to medical and dental treatments as reflected in this document. It should however, be noted that the Minister and/or the Designated Agency that authorised the authorised carer may place limitations or requirements on the extent to which an authorised carer may exercise these functions (for example a requirement to discuss certain treatments with the child’s caseworker and the requirement to advise the child’s caseworker of certain treatments immediately).

Special medical treatment – General Exemption Notice

Consent to carry out special medical treatment as defined in section 175 of the Act on a child under 16 years old in OOHC must be obtained from a court. The court also has power to consent to special medical treatment for people over the age of 16 years who lack capacity to provide consent themselves. The General Exemption Notice provides details of what is exempt from the definition of special medical treatment for the treatment of cancer, ADHD and narcolepsy,

Children and young peoples’ authority to consent

Children and young people aged 14 years and older can give consent to their own medical treatment if they have sufficient maturity and capacity to comprehend the proposed medical treatment.

This is recognised in common law, and in NSW Health policy which provides that a child over the age of 14 years is able to consent to their own medical treatment provided they adequately understand and appreciate the nature and consequences of the operation procedure or treatment see: Consent to Medical Treatment - Patient Information

Table A: Day-to-day medical and dental treatments

Key to table

Yes = person or organisation who has authority to consent to the treatment (unless Ministerial or designated agency policy directs otherwise)
DCJ Delegation = DCJ delegate who has authority to sign the medical/dental consent form
MCS = DCJ Manager Client Services
DCS = DCJ Director Community Services

notes: Barnardos exercises the powers of Parental Responsibility (PR) under the Deed of Agreement.

* Urgent medical treatment (s157(1)(b), Children and Young Persons (Care and Protection) Act 1998) is not defined in the legislation. It may include but is not necessarily limited to circumstances where delaying treatment in order to seek consent from DCJ would cause the child unreasonable distress or the child would be in severe pain as a result of the delay.

Table B: Other Medical and Dental Treatments

note: Barnardos exercises the powers of Parental Responsibility (PR) under Deed of Agreement.