Children, Competency and Consent to Cosmetic Surgery

1. Children, Competency and Consent to Cosmetic Surgery Tina Cockburn QUT Faculty of Law

2. “Medical treatment of children is an emotive issue involving as it does a tension between the wishes and interests of parents and children, individual autonomy and state intervention.” • Leanne Bunney “The Capacity of Competent Minors to Consent to and Refuse Medical Treatment” (1997) 5 JLM 52

3. Doctors push for teenage obesity surgeryJason Dowling and Heath Gilmore January 6, 2008, The Sun-Herald TEENAGERS as young as 14 may soon be queueing up for weight-reduction surgery under a radical push by the Australian Medical Association to tackle the obesity crisis. … Medical experts in Victoria are trialling the surgery on 25 teenagers aged between 14 and 18, with another 25 adolescents under conventional weight-loss programs to compare the results. … Dr Keegan … rejected suggestions the surgery was an easy option for those unable to confront their problem. "This form of surgery is reversible and effective," he said. "It's not an option for people who just don't want to do the hard yards. "The surgery requires an entire team approach including a psychologist, dietitician as well as the medical team. Research suggests that this surgery can shift established bio-chemical processes for the morbidly obese." Health experts said the surgery had its biggest impact on younger people and could have a large impact on life expectancy. …

4. “The AMA discourages the promotion of cosmetic surgery, being particularly mindful that advertising and other promotions which appeal to youth encourages people to consider cosmetic surgery as an easy solution to personal issues including body image dissatisfaction.” Australian Medical Association, Body Image and Health, 2002.

5. Children, Competency and Consent to Cosmetic Surgery • Policy considerations • Consent • When is a child competent to consent to cosmetic surgery? • Reform proposals

6. What is Cosmetic Surgery? • Cosmetic surgery involves “reshaping normal structures of the body using surgical and non-surgical techniques”, it is “initiated by the consumer to improve their appearance and self-esteem”: The Cosmetic surgery report: report to NSW Minister for Health October 1999 • Cosmetic procedures: “Operations and other procedures that revise or change the appearance, colour, texture, structure of position of normal body features with the sole intention of improving the patient’s appearance or self-esteem”: Medical Council of New Zealand

7. What is cosmetic surgery? • Queensland discussion paper “Have your say: Children and Young People using cosmetic surgery and solariums in Queensland”, October 2007 : • ‘Cosmetic surgery’ refers to invasive (procedures that break the skin, such as breast enlargement, rhinoplasty (nose surgery), surgical face-lifts, tummy tucks, liposuction, and collagen and botox® injections) and non-invasive (procedures that do not usually break the skin, such as chemical peels, microdermabrasion, and laser hair removal) procedures performed for non-medical reasons. They are procedures that are performed on otherwise healthy people, purely for cosmetic reasons, not because of any medical reason. • However, ‘cosmetic surgery’ does not include invasive and non-invasive procedures done for medical reasons, as directed by a qualified clinician. Procedures done for medical reasons could be to treat and correct physical conditions which cause problems for the medical, psychological and social well being of people. For example, ear surgery (otoplasty), breast reduction in men (gynecomastia) and corrective rhinoplasty (nose) surgery. • It does not cover: • any procedure undertaken for medical reasons at the direction of a medical or other qualified clinical professional • cosmetic dentistry which is performed by dentistry professionals • tattoos and body piercing, which are not commonly regarded as cosmetic surgery.

8. Who is a child? • < 18 years • eg Age of Majority Act (Qld) s5 • "A child becomes an adult when he realises that he has a right not only to be right but also to be wrong.“ • Thomas Szasa, Hungarian-born psychiatrist, The Second Sin (1973) "Childhood"

9. Policy Considerations Ethical Principles Human Rights Parental Responsibility

10. United Nations Convention on the Rights of the Child Article 3.1: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Article 1: a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. United Nations Convention on the Rights of the Child (1989), UN General Assembly Document A/RES/44/25

11. Best interests of the child • Terms of UN Convention may be used to resolve ambiguities in legislation and common law • In context of medical decision making: • Promote child’s autonomy and self determination • Ensure wishes given due deference and weight • If competent child makes a voluntary informed decision, decision to be respected.

12. Consent Why is consent necessary? Elements of consent When is consent not necessary?

13. Why is consent necessary? • Good medical practice • Respect for autonomy and bodily integrity: Marions case • Legal Requirement • Failure to obtain consent to procedure in broad terms may result in a trespass action: Chatterton v Gerson; Rogers v Whitaker “Every person being of adult years and sound mind has a right to determine what shall be done with his or her own body; and a surgeon who performs an operation without his patient’s consent commits an assault.” • Schloendorff v Society of New York Hospital (1914) 105 NE 92 per Cardozo J at 93

14. Elements of Consent • Capacity • Broad understanding of procedure to be performed • Voluntary J Devereux “The Capacity of a Child in Australia to Consent to Medical Treatment – Gillick revisited?” (1991) 11 (2) Oxford Journal of Legal Studies 283 at 284, citing I Kennedy and A Grubb, Medical Law Text and Materials, London 1989, 180

15. When is consent not necessary? • Blood transfusions • Transplantation and Anatomy Act 1979 (Qld) s20. • Emergency • Procedures to save or prolong life in hospital or institution and patient incapable of consenting due to mental disability • S52 Medical Act 1939 (Qld)

16. When is a child competent to consent to cosmetic surgery? Competency Children and consent: common Law (Qld) Children and consent: legislation (Qld, SA, NSW) Children and consent: law reform proposals Cosmetic surgery case study

17. “The law relating to young people’s competence to consent is obscure, complicated and piecemeal.” L Skene, Law and medical practice: rights, duties, claims and defences , 2nd ed, LexisNexis Butterworths, Sydney, 2004, Ch 4

18. Assessing competency • Abilities required for competency: • receive, understand, retain and recall relevant information; • integrate the information received and relate it to one’s situation; • evaluate benefits and risks in terms of personal values • rationally manipulate the information in order to select an option, and give cogent reasons for the choice; • communicate one’s choice to others; and • persevere with the choice until the decision is acted upon. • JG Wong, ICH Clare, MG Gunn, AJ Holland “Capacity to Make Health Care Decisions: its Importance in Clinical Practice” (1999) 29 Psychological Medicine 437 at 439 • Functional ability as a decision maker • “This approach, though lacking the certainty of a fixed age rule, accords with experience and psychology.” Marion’s case per majority at [8]

19. Children and Consent: Common Law • Incompetent children: • Parents can consent provided acting in best interests of child: Marions case at [27]; K v Minister for Youth & Community Services [1982] 1 NSWLR 311 • Exception (court authority required): • Sterilization (cf sterilization which is an incidental by-product of surgery that was intended to cure some malfunction or disease): Marions case • Family Court – welfare jurisdiction • Supreme Court – parens patriae jurisdiction

20. Why is sterilization treated as a special case? • the operation is irreversible • it deprives a woman of a fundamental right to bear children • moral and emotional considerations mean that this right has great importance • if a court is not involved, there is greater risk of the matter being decided wrongly • it may be carried out for improper reasons • there is a need to protect those involved from legal action • Marion’s case at [39], referring to Re F [1990] 2 AC per Lord Brandon at 70-71

21. Children and Consent: Common Law • Competent children • TEST: capacity to consider treatment options and consequences: Gillick; Marion’s case • A competent patient is one “ who is capable of understanding the nature, consequences and risks of the proposed treatment and the consequences of non-treatment: Marion’s case at 237 • Consider each case on its own merits • rule of thumb: competent from approximately 14 years (Piaget)

22. Gillick v West Norfolk & Wisbech Area Health Authority [1986] 1 AC 112 • Mother of five girls under 16 sought a declaration that a Department of Health memorandum allowing medical practitioners to provide contraceptive advice and treatment to underage patients was unlawful. • Held: A young girl is competent to consent to contraceptive advice and treatment when she “achieves a sufficient understanding and intelligence to enable her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances”: Lord Scarman at 189

23. Secretary, Department of Health & Community Services v JWB & SMB(1992) 175 CLR 218(Marions case) Parents of a 14yr old girl with severe intellectual and physical disabilities sought authorisation for a sterilisation procedure • Held: except where sterilisation is “an incidental result of surgery performed to cure a disease or correct some malfunction” parents do not have the power to authorise the operation. Family court has jurisdiction to authorise the procedure. • Power of parents to consent diminishes as child’s capacity and maturity grows. • A minor can give informed consent when he or she achieves sufficient understanding and intelligence to comprehend what is proposed. • depends on the rate of development of each individual

24. Consent: Legislation • Queensland: • Transplantation & Anatomy Act 1979 (Qld) • s12B: parent can consent to removal of regenerative tissue for transplantation into direct family member • 12C: child can consent if understands nature and effect of procedure • New South Wales: • Minors (Property and Contracts) Act 1970 • No liability in trespass • s49(1):if parent consents to medical treatment of a child under 16 • s49(2): if child 14 years and above consents • Guardianship Act 1987 • applies where >16 and incapable of consent ss34(1), 36, 37, 46 • South Australia: • Consent to Medical Treatment and Palliative Care Act 1995 • S6: person 16 years and over competent to consent • S12: medical practitioner may administer medical treatment to a child if • (a) theparent or guardian consents; or • (b)  the child consents and • (i) treating practitioner believes child understands nature, consequences & risks and that treatment in best interest of child's health & well-being; and • (ii) supporting written opinion of at least one other medical practitioner who personally examines child before treatment commenced.

25. Law Reform Proposals • Queensland: • Law Reform Commission Consent to medical treatment of young people, Discussion paper WP44 (Brisbane, May, 1995) • Consent to Medical Treatment of Young People Report no 51, QLRC, 1996 • draft legislation Health Care Authorisation for Young People Bill 1996 • New South Wales: • Issues Paper 24 (2004) - Minors' consent to medical treatment • Report in final stages of preparation and expected to be released by July 2008

26. Qld Law Reform Commission proposal • Under 12 • consent sole responsibility of parents, provided in best interests of child • 12 - 15years • competent children can consent, parents can also consent, provided in best interests (parents cannot override consent of competent child in child’s best interests) • Incompetent children – parents consent provided in child’s best interests • 16 and 17 years • if competent child can consent to exclusion of others (except court) • Incompetent children – parents consent provided in best interests • Competent: can understand nature and effect of treatment and can communicate that understanding in some way • Health Care Authorisation for Young People Bill 1996

27. Practical Guidelines • Determining competence: • Young person must have sufficient understanding and intelligence to comprehend in general terms: • Nature of their clinical problem • Nature and purpose of the proposed treatment • Effects of the treatment including side-effects • Consequences of non-treatment • Other treatment options, and • Possible repercussions of the treatment, for example the consequences if parents found out.

28. Practical Guidelines (cont…) • Assessing maturity • General maturity of speech and bearing • Ability to explain the clinical problem for which treatment is sought, through appropriate clinical history • Level of schooling • Level of independence from parental care • Ability to make judgements about his or her health. • Document the assessment of maturity in the medical record, together with factors taken into consideration in making decision. • Competency should be tested for each new treatment being considered and should be documented. • “Consent for treatment and confidentiality in young people: protecting patients, guiding doctors”. Melbourne: Medical Practitioners Board of Victoria, 2004

29. Cosmetic Surgery: Codes of Practice • The Australian Society of Plastic Surgeons and the Australasian College of Cosmetic Surgery have advised their members to operate within established codes of practice that encompass the need for: • a medical evaluation to ensure a patient’s suitability for the procedure and to identify possible risk factors or other factors that may result in a poor outcome • psychological evaluation to establish the reason the patient wants the procedure done and to identify possible psychological risk factors or indicators of poor outcome • patient education including information about the procedure, possible alternative treatments, obtaining a second opinion, information about complications, side-effects and expected realistic outcomes • obtaining informed consent and allowing for a “cooling off period” between the initial consultation and performance of the procedure. • http://www.health.qld.gov.au/publications/cos_surg_child.pdf

30. Can children consent to cosmetic surgery? • If Gillick competent (capable of understanding the nature, consequences and risks of the proposed treatment and the consequences of non-treatment) • yes, child can consent • If not Gillick competent • no, parents consent or court can approve procedure • Is cosmetic surgery an exceptional case requiring court approval? • “As a starting point, sterilisation requires invasive, irreversible and major surgery. But so do, for example, an appendectomy and some cosmetic surgery, both of which, in our opinion, come within the ordinary scope of a parent to consent to. However, other factors exist which have the combined effect of marking out the decision to authorise sterilisation as a special case. Court authorisation is required, first, because of the significant risk of making the wrong decision, either as to a child's present or future capacity to consent or about what are the best interests of a child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave.”: Marions case per majority at [49]

31. Reform Proposals Qld Discussion Paper Proposed legislation: Qld Proposed legislation: other jurisdictions Comments

32. Qld Discussion paper “Have your say: Children and Young People using cosmetic surgery and solariums in Queensland”, October 2007 • This paper is only about access to solariums and cosmetic surgery performed on Queensland children and young people under the age of 18 for non-medical reasons. It does not cover: • any procedure undertaken for medical reasons at the direction of a medical or other qualified clinical professional • cosmetic dentistry which is performed by dentistry professionals • tattoos and body piercing, which are not commonly regarded as cosmetic surgery. • No report available, but Qld health consulting with key stakeholders to progress proposals • “About 300 submissions were received from mostly parents and young people, with 95% in support of greater regulation.” Premier Bligh, “Ban on Cosmetic Surgery for Teens” Sunday Mail, April 6, 2008

33. Teenagers to be barred from the surgical quick-fix TEENAGERS will be banned from having cosmetic surgery in Queensland from the middle of the year, and the state is also planning to bar them from solariums. It will be the first state to ban "unnecessary, high-risk and invasive" cosmetic surgery for those under 18. "This is not about becoming a nanny state," the Premier, Anna Bligh, told Parliament yesterday. "I appreciate that this can be a difficult time, especially in a young woman's development, but to resort to a surgeon's blade is an adult response best left until one is an adult." She said procedures to correct deformities would be allowed, along with undefined procedures to help a teenager's medical, psychological or social well-being. But "major surgery" for purely cosmetic reasons, including breast implants, would not be permitted after the laws were passed. "As legislators, we have a responsibility to ensure our youth are not resorting to surgical quick-fixes to improve their appearance," she said, "and there are no cowboys in the industry … preying on their vulnerabilities and insecurities.“ The Australian Society of Plastic Surgeons said it welcomed the proposed ban, and its exception. Its president, Howard Webster, said in a statement he was pleased "essential surgery" for fixing prominent ears, asymmetrical breasts and extra digits would still be permitted. Meanwhile, the state's health minister, Stephen Robertson, said he planned to ban under-18s from using solariums, no matter what came out of today's discussions with other health ministers on a national approach. "We are determined to ban young people from this potentially harmful practice.“ Sydney Morning Herald April 18, 2008

34. Proposed legislation: Qld • ban "unnecessary, high-risk and invasive" cosmetic surgery for those under 18. • "major surgery" for purely cosmetic reasons, including breast implants • Ban under 18s from using solariums • Exceptions: • procedures to correct deformities • procedures to help a teenager's medical, psychological or social well-being • "essential surgery" for fixing prominent ears, asymmetrical breasts and extra digits

35. Proposed legislation: other jurisdictions • Western Australia: • fair skinned persons (skin type one) to be banned form using solariums • People under 18 to be banned from using solariums Radiation Control Act regulations • Victoria: • People under 16 will not be allowed to use solariums, while 16 and 17 year olds will require parental consent Radiation Act 2005 regulations 1 February 2008 • 11. The user must not expose a person who is less than 16 years of age to ultraviolet radiation produced by a tanning unit. • 12. The user must not expose a client who is at least 16 years of age but less than 18 years of age to ultraviolet radiation produced by a tanning unit unless the client’s parent or guardian has signed and dated the consent form shown in the Appendix to the Notice. • Cosmetic surgery – proposal: parental consent plus counselling required (ABC Lateline 31/10/07) • South Australia: • fair skinned persons and those under 18 banned from solariums Radiation Protection and Control (Cosmetic Tanning Unit) Regulations 2008 • Cosmetic surgery – ban for under 18s under consideration • New South Wales: • Cosmetic surgery – proposed 3 month cooling off period, mandatory counselling, second opinion • Proposed ban on intimate body piercing for under 16s

36. Issues for consideration • Protecting vulnerable children vs respecting autonomy • Certainty vs flexibility of case by case analysis • Fast and inexpensive vs delay and expense of court applications • Definitions – eg what is cosmetic surgery, who is a child (18, 16, 14?), therapeutic vs non-therapeutic procedures? • Which procedures to allow: • Procedures for medical reasons • “procedures to correct deformities” • “procedures to help a teenager’s medical, psychological or social wellbeing” • Vs “major surgery for purely cosmetic reasons” • Vs “unnnecessary, high risk and invasive cosmetic surgery” • Professional judgement and discretion vs guidelines to minimise risk of incorrect assessment • Acknowledgement of role of parents • Piecemeal changes vs uniform reform and coherence in the law relating to children and consent to medical treatment more broadly • Alternatives to prohibition – regulation of cosmetic surgery industry; Codes of Conduct – cooling off period, counselling, independent advice