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Introduction

This tool is to guide FACS, 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 Family and Community Services (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 FACS. 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)
FACS Delegation = FACS delegate who has authority to sign the medical/dental consent form
MCS = FACS Manager Client Services
DCS = FACS Director Community Services

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

Medical / Dental treatment or decision Authorised
carer can
consent
(FACS or NGO)
BARNARDOS
can consent
FACS
consent required
Actions/ Notes
Administration of medication prescribed by a medical practitioner as well as ‘over the counter’ medicines on the advice of a pharmacist/medical practitioner Yes Yes No  
Administration of psychotropic medication
prescribed by a medical practitioner
Yes Yes No Action: the authorised carer must immediately notify the designated agency with supervisory
responsibility for the placement, if a child is prescribed a psychotropic drug (Section 26(1), Children and Young Persons (Care and Protection) Regulation 2012).

Psychotropic medication forms only one part of a comprehensive treatment plan which is documented in the Behaviour Support Plan.

The Behaviour Support Plan must be developed by a qualified professional and
approved by the principal officer of the designated agency with supervisory
responsibility for placement. Section 26(2), Children and Young Persons (Care and Protection) Regulation 2012.
Contraception for 14‐15 year olds ‐ prescription of medication and devices for contraceptive purposes (e.g. diaphragm, contraceptive implants). Yes Yes No Action: Consider whether a Risk of Significant Harm report needs to be made to the FACS Helpline.

Action: Authorised carer to advise their caseworker.
Dental ‐ general check‐ups Yes Yes No  
Dental ‐ ordinary dental treatment, on the advice of a dentist, including those conditions identified in the child’s case plan for example, treatment for gum disease. Yes Yes No  
Dental surgery (minor) on the advice of a dentist ‐ a tooth extraction, the filling of a decayed tooth, root canal work or a repair to a broken or chipped tooth, not requiring general anaesthetic. Yes Yes No Action: Authorised carer to advise their
caseworker.
Dental surgery (major) ‐ urgent
Where a dentist certifies in writing that the surgery needs to be carried out as a matter of urgency, in the best interest of the child or young person.
Yes Yes No Action: Authorised carer to advise their caseworker.
Clause 40(2)(c) of the Care Regulations require an authorised carer to immediately notify the
designated agency if the child or young person suffers a serious accident, illness or injury.
Emergency Medical Treatment N/A N/A N/A No consent is required. S174, Children and Young Persons (Care and Protection) Act 1998 sets out that emergency medical treatment can be carried out without consent if the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life or to prevent serious damage to his or her health.
Eye and hearing tests Yes Yes No  
Immunisations Yes Yes No  
Medical ‐ general check‐ups Yes Yes No  
Medical treatment not involving surgery, on the advice of a medical practitioner, including those conditions identified in the child’s case plan for example, treatment for asthma or diabetes. Yes Yes No  
Medical treatment involving surgery (urgent) *
Where a medical practitioner certifies in writing that the surgery needs to be carried out as a matter of urgency, in the best interest of the child or young person.
Yes Yes No Action: Authorised carer to advise their caseworker.
Clause 40(2)(c) of the Care Regulations require an authorised carer to immediately  notify the designated agency if the child or young person suffers a serious accident, illness or injury.
Testing ‐ where medical tests are necessary as advised by a medical practitioner that do not involve surgical procedures. See table B for specific consents in relation to HIV and Hep C testing and DNA testing to establish parentage. Yes Yes No  

* 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 FACS 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.

Medical / Dental treatment or decision Authorised
carer can
consent
(FACS or NGO)
BARNARDOS
can consent
FACS
consent is
required
Actions/FACS Delegation/Notes
Contraception for under 14 year olds ‐ prescription of medication and devices for contraceptive purposes (e.g. diaphragm, contraceptive implants). No No Yes FACS delegation: MCS
Action: Consider whether a Risk of Significant
Harm report needs to be made to the FACS
Helpline.
Dental surgery (major) ‐ non‐urgent
May involve use of general anaesthetic.
No Yes Yes FACS delegation: MCS
Drug & Alcohol rehabilitation treatment
programs
No Yes Yes FACS delegation: MCS
End of life medical intervention/decisions
including withdrawal of treatment.
No No Yes FACS Delegation: Deputy Secretary responsible for the District
Medical treatment involving surgery (non-urgent) No Yes Yes FACS delegation: MCS
Medical treatment for terminal illness No No Yes FACS Delegation: DCS or Director Metro Intensive Support Services
Psychiatric Hospital ‐ admission (as a voluntary patient). No Yes Yes FACS delegation: MCS
Psychiatric Hospital ‐ treatment (as a voluntary patient) giving consent to time limited seclusion, physical restraint, chemical restraint or sedation of a child in a psychiatric hospital. No Yes Yes FACS delegation: MCS
Termination of pregnancy No No Yes FACS delegation: MCS
Testing ‐ DNA testing to establish parentage. No Yes Yes FACS delegation: MCS
Testing ‐ where the purpose of the testing is to determine a child’s HIV/AIDS or Hepatitis C status and testing has been advised as necessary by a medical practitioner. No Yes Yes FACS delegation: MCS
Testing ‐ where the testing is necessary as advised by a medical practitioner and involves surgery or an invasive procedure (for example internal cameras). No Yes Yes FACS delegation: MCS
Testing ‐ where the testing is not necessary for the medical treatment of the child but is for another reason (for example to contribute to research). No No N/A FACS would not support the testing of a child unless the testing is necessary for their medical treatment.
Any non‐emergency treatment intended or likely to render the child permanently infertile No No Yes, after
consent has been
given by the
tribunal/court.
The Guardianship Division of the NSW Civil and
Administrative Tribunal, Family Court of
Australia or Supreme Court must authorise
this procedure for minors (0‐18 years old).
FACS Delegation: DCS after consent has been
given by the tribunal/court.
Vasectomy or tubal ligation No No Yes, after
consent has been
given by the
tribunal/court.
The Guardianship Division of the NSW Civil and Administrative Tribunal, Family Court of Australia or Supreme Court must authorise this procedure for minors (0‐18 years old).
FACS Delegation: DCS after consent has been
given by the tribunal/court.
Any medical treatment that involves an experimental procedure that does not conform to the document entitled National Statement on Ethical Conduct in Research Involving Humans published by the National Health and Medical Research Council (NHMRC) in 2007 and updated in 2013. N/A N/A N/A This is an offence under s175(1), Children and Young Persons (Care and Protection) Act 1998.
The administration of a drug of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966 over a period totalling more than 10 days in any period of 30 days and an exemption has not been granted. Read the general exemption notice. N/A N/A N/A This is an offence under s175(1), Children and Young Persons (Care and Protection) Act 1998.
Note: Dexamphetamine and methylphenidate
("Ritalin") for the treatment of ADHD are exempt.
Treatment in cases of gender dysphoria N/A N/A The Minister
must consent to the making of a court application.
Note: An application is to be made to the Family Court for authorisation of both Stage 1
and Stage 2 treatments.
FACS Delegation: The Minister must consent to the making of a court application.
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Last updated: 18 Oct 2018
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