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they have the power.”202

2.149Section 8 of the English Family Law Reform Act 1969 states that a young person over the age of 16 years can consent to medical treatment as if he or she was an adult.  In the Gillick case, the House of Lords held that parental rights exist “only so long as they are needed for the protection of the person and property of the child”.  Lord Scarman took the view that “as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.”

2.150In Hong Kong, the Law Reform Commission’s report on Young Persons - Effects of Age in Civil Law203 noted the guidelines adopted by the medical profession which indicated that the consent of a parent or legal guardian should be obtained if a patient was under 21 years.  The Commission, having considered correspondence from the Director of Medical and Health Services and the significance of the Gillick judgement and a survey, “unanimously recommend[ed] that 18 years should be the age to be inserted in the proposed statutory provision creating a presumption of ability to give a valid consent to medical treatment”.204  We have been informed that in 1994 the medical profession advised the Health and Welfare Branch that they considered the common law rules governing medical consent were working well and that there was no need for legislation.

Contempt of custody orders

2.151The only remedy for breach of a custody, access or guardianship order would seem to be contempt of court but it is arguable whether the District Court can commit a person to prison for contempt of one of its orders.  Section 20 of the District Court Ordinance (Cap 336) provides, inter alia, that it may be an offence if a person “wilfully interrupts the proceedings of the Court or commits contempt of the court or otherwise misbehaves in court ....”  At first sight, this would seem to imply that the contempt is punishable only if it occurs in court, rather than when an order is breached outside the court.

2.152Section 48 provides that the District Court shall grant such relief as ought to be granted in such a case by the Court of First Instance.  Rule 90 of the Matrimonial Causes Rules (Cap 179) sets out the procedures for committal and injunction and refers to Order 52 rule 4(1) of the Rules of the High Court.  Rule 91 provides that where the registrar is satisfied that the order cannot conveniently be enforced in the District Court then the order can be transferred to the Court of First Instance for enforcement.  In Xavier v Xavier205 the Court of Appeal rejected the view that the District Court did not have power under rules 87 and 88 of the Matrimonial Causes Rules (Cap 179) to commit to prison for breach of its order.  It followed an

202 Idem.

203 Paragraphs 5.2. Topic No 11, (1986).

204 Paragraph 5.5.4.

205 [1976] HKLR 964.

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