Until a child turns 16, their medical decisions will usually be made by their guardians. However, sometimes guardians cannot agree on the same course of treatment, which can lead to difficulties if treatment is required.

The consent of both guardians must be obtained for “non-routine” medical treatment. If the treatment is routine, the guardian with day-to-day care of the child can make the decision themselves. An example of a routine medical treatment is a general GP check-up, or a dentist appointment.

For more important decisions, both guardians must consent. If guardians cannot agree on a course of treatment, they can seek guidance from the Court.

Some examples of important medical decisions that the Court may make an order for are major surgeries, or less common conditions not requiring surgery that will affect a child’s day to day life such as an ADHD diagnosis.

In one case, the Court determined that a child should undergo treatment for ADHD, despite it being against her father’s wishes. After hearing evidence from a psychologist and the child’s teacher, the Court determined that treatment for ADHD was in the child’s best interests.

The Court may also intervene where one guardian refuses to get their child treatment for a serious medical diagnosis.

The Court has previously held that the treatment of HIV was necessary for a child, due to the serious risk of AIDS and other health implications of non-treatment. This case was also decided in light of the father’s refusal to acknowledge the diagnosis, or that the child’s mother had passed away from HIV. In that case, the Court determined that there was a “real and substantial risk” to the health and safety of the child if medical treatment was not pursued.

The Court can sometimes grant itself guardianship if a parent or guardian is unable to make decisions in the best interests of the child.

In one case, the Court appointed itself guardianship over a child because the guardians had neglected to provide them with adequate dental treatment. While dental care is generally considered a routine medical decision, in this case the effect of non-treatment was so significant that it was negatively affecting the child’s health, and the guardians failed to act, as they could not agree on a course of treatment.

Vaccinations can also fall within the category of “important” medical treatment. The Court will balance the risks of the vaccine with the health protections for the child and the general population. When determining these issues, the Court is likely to prevent vaccination only where the child has particular health issues which put them more at risk to adverse reactions than an ordinary person.

The Courts may also intervene where a child under the age of 16 wishes to undergo a gender transition treatment. In one case, the Court prevented such treatment as the child was showing signs of changing their mind and treatment was not immediately necessary for the child’s physical health.

If you are having difficulties agreeing with your co-parent or guardian about the best course of treatment for your child, it pays to seek advice from a professional with experience in the area, who can help explain the options available to you.

 

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Author

Shaun Cousins and Hunter Flanagan-Connors