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Student Consent: (Part Two) – Permission Forms, Medical Treatment and Privacy: What can students agree to?

25/04/18
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This is the second article in a two-part series on issues of student consent in schools. In this series, Kieran Seed, Legal Research Consultant and School Governance reporter, examines the scope of different consent laws in Australia, and how they can impact upon the operation of schools.

In last week’s article, we considered the state of sexual consent laws in Australia, and how these have been impacted in recent times through the growth in intimate-image abuse. We also looked at the significance of these laws, and of any amendments to these laws, to the education sector. These laws are constantly being updated and require ongoing monitoring; on 19 April (the same day the previous article was published), the Northern Territory assented to a new law introducing offences related to sharing of intimate images - the Criminal Code Amendment (Intimate Images) Act 2018 (NT).

However, the consent issues which most schools experience on a regular basis are documentary in nature, rather than relating to sexual offences. The forming of any enrolment agreement, payment plan, information collection or activity permission inevitably involves a signature on the dotted line. In other words, informed consent is a core component of the school experience.

A student who reaches the age of 18 is clearly able to make their own decisions, but from a legal perspective, parental rights and the capacity of children to provide consent to different kinds of agreements are not clearly established. Yet schools are expected to have a strong understanding of consent laws and the rights of students as there are numerous instances in which the capacity of a student will need to be considered. Potential situations include students:

  • requesting that their parent/s be refused access to the personal information in their enrolment record
  • living independently of their parents/carers
  • consenting to medical treatment in conflict with their parents’ wishes.

The Excursion Example

For a student to be able to go on an excursion, informed consent needs to be given for them to attend. Informed consent requires sufficient information to be given about the excursion to enable an informed decision, which will vary depending on the nature and risk of the excursion. This is generally presented in an excursion permission form.

Excursion permission forms are usually not contractual in nature, but they may become a binding legal agreement if they involve some financial payment for participation and contain contractual-like clauses such as waivers of liability.

A student’s personal information is almost inevitably going to form part of an excursion permission form, particularly with respect to medical details, meaning it needs to be managed in accordance with privacy laws.

For excursions that involve significant risk and/or students with high-risk medical conditions, the permission form may also require consent to medical treatment to be provided.

This means that the process of getting a parent or student to sign an excursion permission form involves three or more areas of law, which all operate independently and have different conceptions of the capacity to provide consent.

Can Students Provide Consent?

Contract

At common law, a person under the age of 18 will only be bound by a contract for ‘necessaries’, including food, drink, clothing, medicine, education and employment. This common law principle is codified in most jurisdictions. The Courts have interpreted that ‘necessaries’ are not limited to bare essentials; instead this term is determined in the context of what would be normal for a child to maintain their existing lifestyle at the time. A possible example would be a mature student signing an enrolment contract.

In NSW, the Minors (Property and Contracts) Act 1970 (NSW) grants minors greater capacity to make their own decisions for contractual purposes. Under s17 of this Act, when a minor participates in a civil act (which includes contracts or providing releases of a cause of action), it will be presumptively binding on them where the participation was for the minor’s benefit at the time.

However, a civil act will only be binding if the minor has the ‘understanding necessary’ to participate, a term which remains undefined. Whether a child is mature enough to understand will depend on the particular circumstances, but it is likely that the greater the impact of signing the contract – such as if it contains an indemnity or broad legal waiver – the greater the burden of showing that the child understood what they were signing.

Privacy

The management of personal information is governed by the Privacy Act 1988 (Cth). The Privacy Act does not differentiate between adults and children and so on the face of it, it appears that children and young people of any age can make decisions relating to the privacy of their personal information.

Fortunately, the APP Guidelines produced by the Office of the Australian Privacy Commissioner (OAIC) provide a more realistic interpretation of how they, as the regulator, would see this being applied. The basic common law principle is that to be able to provide legal consent, which would include consent to use/disclosure of personal information, a person must have capacity to consent. While the Guidelines refer to the age of the minor being a key factor in their capacity to make a decision with respect to their personal information, they do not specify any definitive age thresholds, instead requiring a case-by-case assessment of the understanding and maturity of the child to understand what is being proposed.

However, the Guidelines do go further and acknowledge that if it is not practicable or reasonable to assess the capacity of a student on a case-by-case basis, a school can presume that an individual aged 15 or over has capacity to consent, unless there is something to suggest otherwise. Individuals aged under 15 are presumed not to have capacity to consent.

Medical Treatment

For legal purposes, children are not regarded as lacking capacity to consent to medical advice and treatment by reason only of their age. The current common law test for whether a child is mature enough to provide consent is known as ‘Gillick competency’, after the UK case of Gillick v West Norfolk and Wisbech Area Health Authority and the DHSS, which has been approved in Australia.

In this case, it was stated that a parental right yields to the child’s right to make their own decisions when they reach a sufficient understanding and intelligence to be capable of making up their own mind on the matter. This is a question of fact and will depend on the circumstances. Only a few jurisdictions have legislated on minors’ consent to medical treatment, thereby amending the common law test.

In NSW, under the Minors (Property and Contracts) Act (NSW), children aged 14 and older are able to provide consent to medical treatment. In SA, the Consent to Medical Treatment and Palliative Care Act 1995 (SA) prescribes that an individual of 16 years of age or over can consent to medical and dental treatment 'as validly and effectively as an adult'. However, even though they are able to provide consent, the Acts do not define what ‘consent’ in this context looks like. Further, neither Act renders ineffective the consent of a child younger than the relevant threshold. Such questions would likely be resolved through the common law test.

In Victoria, the common law test was recently amended by the Medical Treatment Planning and Decisions Act 2016 (Vic), which took effect on 12 March. While this legislation is intended to provide statutory recognition to advance care directives and provide for treatment of persons without decision-making capacity, it sets a four-step test for when a person has 'decision-making capacity' to provide informed consent to medical treatment that has no age thresholds. Under this statutory test, to have decision-making capacity, a person must be able to:

  • understand the information relevant to the decision and the effect of the decision
  • retain that information to the extent necessary to make the decision
  • use or weigh that information as part of the process of making the decision
  • communicate the decision and their views/needs as to the decision in some way, including by speech, gestures or other means.

How Should Schools Manage Student Consent?

Because of the legal complexity surrounding different consent laws, and given that in most instances parent/carer consent will operate as though the student is giving consent, schools should seek parental consent in all but the most exceptional circumstances. Exceptional circumstances would include a student living separately and independently from their parents, or where consent is difficult or inappropriate to obtain from the students’ parents, for example due to family law issues. In each instance, the student must have sufficient maturity, understanding and intelligence to be able to provide consent.

Schools should have clearly defined procedures in place for seeking informed consent with respect to excursion permissions, medical treatment, collection of personal information, including how and when students may provide consent.

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About the Author

Kieran Seed

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