Medico-legal issues

Please review the following section before starting the RAd trial

The following section provides a brief overview of important Medico-Legal considerations when providing health services to young people. These topics include: 

• Consent to treatment
• Confidentiality
• Medicare and Young People
• Mandatory Reporting
• Sexual Consent
• Failure to Disclose Laws
• Sexting 
• Transgender young people

For more information, please use the suggested resources provided.

Age	Sexual Activity	Mandatory Reporting	Mature Minor Status	Medicare card eligibility
Under 12	Sexual activity is not allowed with children under 12 years of age	Must make a mandatory report if child has experienced physical injury or sexual abuse	Less likely to be a mature minor	NA
12	Sexual activity is legal with consent if no more than 2-year age difference	Must make a mandatory report if child has experienced physical injury or sexual abuse	Less likely to be a mature minor	NA
13	Sexual activity is legal with consent if no more than 2-year age difference	Must make a mandatory report if child has experienced physical injury or sexual abuse	Less likely to be a mature minor	NA
14	Sexual activity is legal with consent if no more than 2-year age difference	Must make a mandatory report if child has experienced physical injury or sexual abuse	Ability to consent to medical treatment dependent on mature minor status	Can apply for their own duplicate card with parent’s consent.
15	Sexual Activity is legal with consent if no more than 2-year age difference	Must make a mandatory report if child has experienced physical injury or sexual abuse	Ability to consent to medical treatment dependent on mature minor status	Eligible for their own Medicare card
16	Sexual activity is legal with consent unless someone is in a position of power over the 16-year-old (e.g., teacher, sports coach, religious leader etc.)	Do not have to make a mandatory report if the 16-year-old is deemed a mature minor and has requested the offence to not be reported.	More likely to be a mature minor	Eligible for their own Medicare card
17	Sexual activity is legal with consent unless someone is in a position of power over the 17-year-old (e.g., teacher, sports coach, religious leader etc.)	Do not have to make a mandatory report if the 17-year-old is deemed a mature minor and has requested the offence to not be reported.	More likely to be a mature minor	Eligible for their own Medicare card
18 +	Sexual activity is legal with consent	Do not have to make a mandatory report for an 18-year-old	Can consent to medical treatment	Eligible for their own Medicare card

Consent to Treatment

In Victoria parental power to consent on behalf of the child ends when child is 18 years old. A teenager younger than 18 is considered a ‘minor’. The law recognises the consent of minors if they can fully understand the nature and effects of treatment and consequences of non-treatment i.e. a ‘mature minor’. 

Someone under the age of 18 can see a doctor for medical advice and treatment on sexual matters, including abortion and contraception, without parents knowing or consenting, provided that the doctor is satisfied that:

• even though the patient is under 18 years of age, they understand the advice
• they cannot be persuaded to tell their parents (or will not let the doctor tell their parents) that they are seeing a doctor for advice or treatment on sexual matters
• they are likely start or to continue having sex with or without contraception or getting treated for a sexually transmissible illness (STIs)
• the medical treatment is in their best interests; and / or
• their physical and / or mental health is likely to suffer unless they receive advice and medical treatment.

Parental refusal to provide consent for treatment

Parents/guardians can only consent to or refuse medical treatment on young person’s behalf if they are not considered mature enough to make their own decisions.

Either parent is able to provide medical consent unless there is a court order to the contrary. 

(For more information, please visit https://www.betterhealth.vic.gov.au/health/servicesandsupport/young-people-and-health-services#bhc-content

Confidentiality 

Many young people are concerned about their parents being informed about their medical services or treatment. If a GP determines a child is a mature minor, their health information must be kept confidential and cannot be disclosed unless it is with the child’s consent or the disclosure of information is otherwise permitted or required by law. 

Exemptions to confidentiality 

Sometimes disclosure is necessary to prevent imminent risk of harm to self and others in the public interest, such as: 

• the disclosure is necessary to prevent a serious threat to public health, safety, or welfare, or 
• the disclosure is necessary to lessen or prevent a serious and imminent threat to any person’s health, safety, or welfare. 

Examples: 

• The young person is at imminent risk of harming themselves
• The young person is at imminent risk of harming others

Statutory reporting requirements include: 

• mandatory reporting of abuse
• notifiable infectious diseases
• ongoing drink driving that poses an immediate risk to public safety
• Births and deaths                

Unintentional Breaches of Confidentiality 

Some ways confidentiality of young people may be unintentionally breached include: 

• sending information to the young person’s home
• calling parents phone number; leaving messages to young person on parents’ device
• text reminders sent to parent mobile
• pathology/radiology/consultation bills sent to the home
• prescriptions sent to the home
• parents calling up demanding why you saw their child
• child is under 14 or has invited parent to be nominated representative on My Health Record
• parents entering the room or hearing through walls during a telehealth appointment.

Medicare

• From 15 years of age young people are eligible for their own Medicare card. 
• If aged under 15 years of age, young people can only get their own duplicate Medicare card with the authorisation of their parents or guardians. 

Mandatory Reporting 

In Victoria, under the Children, Youth and Families Act 2005, mandatory reporters must make a report to child protection, if:

In the course of practicing their profession or carrying out duties of their office, position, or employment they form a belief on reasonable grounds that a child needs protection from physical injury or sexual abuse. The following flowchart can be helpful in determining the next steps to take if a young person discloses this information.

If the child is not in immediate danger

If you have significant concerns for the wellbeing of a child, but do not believe they are at risk of significant harm, and where the immediate safety of the child will not be compromised, a referral to Child FIRST or The Orange Door may be appropriate.

Child FIRST, as the access point for family services, is progressively transitioning to The Orange Door. The Orange Door is the new access point for families who need assistance with the care and wellbeing of children, including those experiencing family violence, to contact the services they need to be safe and supported. This may be when a young person:

• Are experiencing significant parenting problems that may be affecting the child’s development
• Are experiencing family conflict, including family breakdown
• Are under pressure due to a family member’s physical or mental illness, substance abuse, disability, or bereavement
• Are young, isolated, or unsupported
• Are experiencing significant social or economic disadvantage that may adversely impact on a child’s care or development

For more information and contact numbers: https://services.dffh.vic.gov.au/referral-and-support-teams

Sexual Consent

The age of consent refers to the age at which someone can legally agree to engage in sexual activity. The age consent laws differ state by state in Australia. In Victoria the age of sexual consent laws are as follows:

For more information https://www.legalaid.vic.gov.au/find-legal-answers/sex-and-law/age-of-consent

Failure to disclose laws

Failure to disclose child sexual abuse is a new offence in Victoria (27 October 2014) Section 327 of the Crimes Act 1958

Any adult holding a reasonable belief that a sexual offence has been committed against a child (aged under 16) is mandated to report that to police.

Children who have turned 16 and are mature minors (capable of an informed decision of whether to report or not) can request the offence not to be reported). 

Sexting

Sexting is the act of “creating, sharing, sending or posting of sexually explicit messages or images via the Internet, mobile phones or other electronic devices by people, especially young people.” Sexting is becoming increasingly prevalent amongst young people and there are legal implications for people under the age of 18. 

Distributing an intimate image 

It is illegal for someone to distribute an intimate image or sext of someone else under the age of 18 even if they have consented to the content being shared

It is also illegal to threaten to do so. 

Child Pornography

In Victoria possession of an intimate image that shows someone who in under 18 engaging in a sexual activity may be classified as child pornography. 

However, if someone is under 18, they can take, keep and send intimate image of themselves to other people under the age of 18. They can also take and keep images of someone else who is under 18 as long as: 

No-one in the image is more than 24 months younger than them and the image does not show any serious criminal offence such as rape being committed. These exceptions however are complex and do not always apply. 

For more information: https://youthlaw.asn.au/learn-about-the-law/sexting/

This information is up-to-date as of December 2021

Transgender young people

The Australian Standards of Care and Treatment Guidelines for trans and gender diverse children and adolescents is an excellent resource for understanding obligations and legal requirements when treating transgender young people. This resource can be accessed here.

 Current law in Australia requires the adolescent’s clinics to ascertain whether or not an adolescent’s parents or legal guardians consent to the proposed treatment before an adolescent can access either pubertal suppression or hormone treatment. When there is no dispute between the parents, the adolescent or the medical practitioner, the clinician may proceed on the basis of the adolescent’s consents, where competent to consent, or parental consents where the adolescent is not competent to consent. If there is a dispute as to either competence, diagnosis or treatment, court authorisation prior to commencement of treatment is required.  

The Royal Children’s Hospital (RCH) Gender Service 

As detailed on their website ‘The Royal Children’s Hospital (RCH) Gender Service aims to improve the physical and mental health outcomes of children and adolescents who are trans or gender diverse. Being trans or gender diverse is seen as part of the natural spectrum of human diversity.

Some trans or gender diverse children and adolescents experience gender dysphoria. Gender dysphoria is a medical term that refers to the distress that a person may experience when there is an incongruence between their gender identity and their gender assigned at birth. Trans and gender diverse children and adolescents have considerably higher rates of depression, anxiety, self-harm and attempted suicide compared to their cis-gender peers. This is due to their experiences of stigma, discrimination, social exclusion, bullying and harassment. Increasing evidence demonstrates that with supportive, gender affirming care during childhood and adolescence, harms can be ameliorated and mental health and wellbeing outcomes can be significantly improved.

• The Gender Service is a Victorian statewide service. Unfortunately the Service is unable to accept referrals from interstate or overseas.
• The RCH Gender Service is not a crisis service. Should you have immediate or urgent concerns for your child’s mental wellbeing please contact your regional mental health service.

The mental health service State Government website provides contact details for Victoria’s regionalised mental health services and the suburbs and regions they cover http://www.health.vic.gov.au/mentalhealthservices/.

If you or someone you know needs someone to talk to urgently:

• Rainbow Door | 1800 729 367 (10am – 6 pm) or text: 0480 017 246
• QLife | 1800 184 527 (3pm – midnight)
• Lifeline | 13 11 14
• Suicide Call Back Service | 1300 659 467
• Kids Helplin | 1800 551 800

For more information https://www.rch.org.au/adolescent-medicine/gender-service/

Assessment of mature minor status

Mature minors are young people under the age of 18 years who are deemed capable of seeking and obtaining health care for their particular issue.  To give informed consent, a young person must be able to understand what treatment involves, what it is for, why it is needed and why it applies to them as an individual. The young person must also appreciate the risks associated with the treatment and be aware of the other options available, as well as the consequences of not pursuing treatment.

How does the GP assess whether a young person is a MATURE MINOR? 

When the GP decides whether to give the young person medical treatment, they will consider: 

• Age 
• Maturity in other areas of their life 
• Independence – whether they live at home with a parent or carer, or support themselves 
• The seriousness of the treatment 
• The young person’s understanding of why the treatment is needed, what it involves, treatment options, things that might go wrong (like side effects from drugs, or other complications), and consequences of non-treatment.