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inter alia, make a supervision order which includes a requirement that the child undergo medical or surgical attention or treatment.195

2.145Only a parent or guardian can consent to the medical treatment of a child.  This is seen as a common law right, arising from the relationship between child and parent.  There is no specific power or duty set out in legislation dealing with medical treatment.  However, section 9 of the Guardianship of Minors Ordinance allows a dispute between two guardians concerning the welfare of a minor to be dealt with by the court.  This has become an issue where the parent belongs to a minority religious sect.  It is also relevant where the child is mentally or physically handicapped.  There may be a dispute between the parents or between the parents and the medical or social work professions.

2.146Failure to obtain the consent of a parent or guardian before medical treatment theoretically amounts to an assault on the child.  There could also be a claim for the tort of trespass.  The majority of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority196 agreed with the proposition that a parent’s power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacity and maturity grows.  It is argued that the emphasis on the welfare of the child as a paramount consideration is inconsistent with complete control by a parent.197  Arising from this view, a parent has no authority to consent to medical treatment unless it is in the best interests of the child.

2.147The court can use its parens patriae jurisdiction to protect children when there is a conflict between the interests of the child and those of a parent or parents.  Lord Esher MR in R v Gyngall198 described this jurisdiction as follows:

“the court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner of which a wise, affectionate, and careful parent would act for the welfare of the child”.

2.148There are conflicting views as to whether this jurisdiction gives wider powers to the court than to parents.  Eekelaar199 challenged the view that the Crown, as parens patriae, can claim a right to intervene in the lives of minor children which it denies to those children’s parents.  However, the courts have asserted such a jurisdiction in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case).200  The majority of the High Court stated “the more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon the jurisdiction ....”201  Even though the jurisdiction over infants mostly consists of supervising the exercise of care and control by parents and by guardians, “the courts can exercise jurisdiction in cases where parents have no power to consent to an operation, as well as cases in which

195  Section 34 (1B)(c)( iii).

196 [1986] 1 AC 112.

197 Consent to Medical Treatment of Young People.  Discussion Paper, Queensland Law Reform Commission, (May 1995: WP 44), at 34.

198 [1893] 2 QB 232, at 241.

199 “The Eclipse of Parental Rights, (1986) 102 LQR 4, at 8.

200 (1992) 175 CLR 218 (Australia).

201 Mason CJ, Dawson, Toohey and Gaudron JJ at 258-9.

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