Medical and Dental Consent Tool

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This tool has been developed to guide the Department of Communities and Justice (DCJ), NSW Health, and designated non-government agency staff when consent for medical and dental treatment is required for children and young people:

under the care responsibility of an authorised carer, and
for whom the Minister for Families, Communities and Disability Inclusion (the Minister) holds all aspects of parental responsibility, or the health aspect of parental responsibility which includes consent to medical treatment.*

The schedule below provides guidance for practitioners as to when the consent of each of the following persons is required for medical and dental treatment:

children and young persons who are considered Mature Minors (defined below),
authorised carers, and
delegates exercising the Minister’s parental responsibility.

In instances where a specific medical and dental treatment is not included in the schedule, DCJ can contact their Legal Department for advice and NGOs their local Child and Family District Unit (CFDU). This tool should be read in conjunction with the factsheet Consent for medical and dental treatment for children and young people in statutory OOHC.

(*See DCJ website Types of care for more information about different types of care arrangements including statutory OOHC.)

Mature Minors

A Mature Minor is a child or young person who can independently consent to their own medical or dental treatment. A Mature Minor will be assessed by a medical practitioner as having a sufficient level of understanding, intelligence and maturity to fully understand proposed medical treatment.

The term Mature Minor is often used interchangeably with the term Gillick Competent*. If a Mature Minor has capacity to consent to their own treatment, the consent of the authorised carer or DCJ delegate is not required.

There is no set age at which a child or young person may be considered a Mature Minor and any assessment may depend upon the treatment being proposed and their ability to fully understand the implications of that treatment. A court may still override a Mature Minor’s consent to, or refusal of, treatment if it is in the Mature Minor’s best interests**.

It is not the responsibility of the child or young person’s caseworker or carer to make this assessment. If a child or young person is assessed by a medical practitioner as lacking the capacity to consent to medical treatment, their carer may provide consent unless the treatment is of a kind where consent is required as an exercise of the Minister’s parental responsibility. In these instances it may be still appropriate for the child or young person to be involved in discussion and decision making about their treatment.

(* The NSW Consent to Medical and Healthcare Treatment Manual advises the legal position relating to a Minor’s capacity to consent was established by an English case known as Gillick. Gillick was approved by the High Court of Australia in a case known as Marion’s case. The Gillick case holds that a child’s capacity increases as they approach maturity or in other words, the authority of a parent decreases as their child’s capacity increases. (Refer to Section 8: Minors: page 43). ** The NSW Consent to Medical and Healthcare Treatment Manual advises that in instances where a Minor has capacity to consent to treatment that is in their best interests but refuses, a Health practitioners may seek legal advice from the Ministry of Health’s Legal Branch if necessary. (Refer to Section 8: Minors page 43-46).)

Authorised carers

An authorised carer is a person who has been authorised by a designated agency under the care legislation. This may include a foster, relative or kinship carer or DCJ or agency staff in an Intensive Therapeutic Care Home, Alternate Care or Special Care Arrangement.

An authorised carer has care responsibility for the child or young person. Care responsibility includes the authority to consent to some medical and dental treatment as reflected in the schedule. Care responsibility is not the same as parental responsibility.

Authorised carers can consent to most day-to-day medical and dental treatments for children and young people in their care if the child or young person lacks the capacity to consent for themselves. A foster or relative kinship carer cannot delegate this responsibility to another family member and should attend medical appointments with the child or young person when consent is required for medical or dental treatment.

This ensures that children and young people receive appropriate and timely medical and dental treatment, supported by their carer who knows and best understands their needs.

Delegates exercising parental responsibility

A DCJ delegate’s consent for medical and dental treatment is required as an exercise of parental responsibility in circumstances where:

a child or young person is not considered a Mature Minor, and/or
the treatment is not of a kind that falls within an authorised carer’s care responsibility.

In these instances, a DCJ delegate is required to provide consent in accordance with Delegation Schedule X of the Children and Young Persons (Care and Protection) Act 1998.

There may also be certain types of medical or dental treatment for which the consent of a delegate exercising parental responsibility is required in addition to the consent of the Mature Minor or authorised carer. This is reflected in the schedule below.

Barnardos has also been delegated certain aspects of the Minister’s parental responsibility for some children and young people in OOHC. Barnardos can exercise this parental responsibility in accordance with their deed of delegation.

Table key

Where the schedule reflects that a Mature Minor can consent to their medical or dental treatment, there is no need for the authorised carer or a delegate exercising parental responsibility to provide consent. However, if the child or young person is not considered a Mature Minor, consent should be sought from the corresponding column to the right. For example, if a child is not considered to be a Mature Minor, then consent can be obtained from the authorised carer or Barnardos where a ‘yes’ is indicated.

The column reflecting whether DCJ consent is required indicates whether consent is also required from a DCJ delegate (as an exercise of parental responsibility or in accordance with policy). For example, if this column indicates ‘yes’ then consent is also required from DCJ in addition to the consent of the Mature Minor or authorised carer.

DCJ Delegation = DCJ delegate who has authority to sign the medical/dental consent form
DCS = DCJ Director Community Services
MCS = DCJ Manager Client Services
MCW = DCJ Manager Casework.

Table A: Day-to-day medical and dental treatments

Medical / Dental treatment or decision	Mature Minor can consent	Authorised carer can consent (DCJ or NGO)	BARNARDOS can consent*	DCJ consent required	Actions/ Notes
Administration of medication prescribed by a medical practitioner as well as ‘over the counter’ medicines on the advice of a pharmacist/medical practitioner	Yes	Yes	Yes	No
Administration of psychotropic medication prescribed by a medical practitioner. Administering psychotropic medication over a period totalling more than 10 days in any period of 30 days is special medical treatment under s175(5) of the Children and Young Persons (Care and Protection) Act 1998 (Care Act) unless an exemption applies because psychotropic medications are drugs of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966.	Yes	Yes	Yes	No	Action: the authorised carer must immediately notify the designated agency with supervisory responsibility for the placement, if a child is prescribed a psychotropic drug. Psychotropic medication is any prescribed medication which affects cognition, mood, level of arousal and behaviour. There is also a requirement that a Behaviour Support Plan is prepared if this drug is prescribed. This needs to be approved by a principal officer of the designated Agency. The administration of a drug of addiction is an offence under s175(1) of the Care Act unless an exemption applies. Note*: There is a general exemption provided by the Secretary to enable administration to a child of dexamfetamine, lisdexamfetamine and methylphenidate ("Ritalin") for the treatment of attention deficit hyperactivity disorder ADHD)^ .
Oral health examination	Yes	Yes	Yes	No
Oral health – general dental treatment, on the advice of a dental practitioner, including those conditions identified in the child’s case plan for example, treatment for gum disease.	Yes	Yes	Yes	No
Dental surgery (minor) on the advice of a dental practitioner – a tooth extraction, the filling of a decayed tooth, root canal work or a repair to a broken or chipped tooth, not requiring general anaesthetic.	Yes	Yes	Yes	No	Action: Authorised carer or young person to advise their caseworker.
Dental surgery (major) – urgent Where a dental practitioner certifies in writing that the surgery needs to be carried out as a matter of urgency, in the best interest of the child or young person.	Yes	Yes	Yes	No	Action: Authorised carer or young person to advise their caseworker.
Dental surgery (major) – non-urgent – on advice of dental practitioner May involve use of general anaesthetic or conscious intravenous sedation	Yes	No	Yes	Yes	DCJ delegation for children who are not mature minors: MCS For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
Eye and hearing tests	Yes	Yes	Yes	No
Immunisations – including COVID-19 vaccine	Yes	Yes	Yes	No	Consent to COVID-19 vaccination for children ages between 5-11 years must only be given if the administration of the vaccine is recommended by the child’s treating medical practitioner.
Medical – general check-ups	Yes	Yes	Yes	No
Medical treatment not involving surgery, on the advice of a medical practitioner, including those conditions identified in the child’s case plan for example, treatment for asthma or diabetes.	Yes	Yes	Yes	No
Medical treatment involving surgery (urgent)^^ Where a medical practitioner certifies in writing that the surgery needs to be carried out as a matter of urgency, in the best interest of the child or young person.	Yes	Yes	Yes	No	Action: Authorised carer to advise their caseworker. Clause 40(2)(c) of the Care Regulations require an authorised carer to immediately notify the designated agency if the child or young person suffers a serious accident, illness or injury.
Testing – where medical tests are necessary as advised by a medical practitioner that do not involve surgical procedures. See table B for specific consents in relation to HIV and Hep C testing and DNA testing to establish parentage.	Yes	Yes	Yes	No
Emergency Medical Treatment This applies only to treatment where a medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life or to prevent serious damage to his or her health. Emergency Medical Treatment can be administered without the consent of the child or young person or their parent under s174 and 175(2)(a) of the Children and Young Persons (Care and Protection) Act 1998 (Care Act)	N/A	N/A	N/A	N/A

(*Barnardo’s exercises the powers of Parental Responsibility (PR) under the Deed of Agreement. **Section 26(1), Children and Young Persons (Care and Protection) Regulation 2012. ***DCJ Behaviour Support in OOHC Guidelines (2017). ^See General Exemption Order signed by the Secretary on 22 September 2020 pursuant to section 175(4A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - https://dcj.nsw.gov.au/documents/service-providers/out-of-home-care-and-permanency-support-program/health-and-education-pathways/General-Exemption-Notice-2018.pdf (PDF, 163.7 KB). ^^Urgent medical treatment (s157 (1)(b), Children and Young Persons (Care and Protection) Act 1998) is not defined in the legislation. It may include but is not necessarily limited to circumstances where delaying treatment in order to seek consent from DCJ would cause the child unreasonable distress or the child would be in severe pain as a result of the delay).

Table B: Other Medical and Dental Treatments

Medical / Dental treatment or decision	Mature Minor can consent	Authorised carer can consent (DCJ or NGO)	BARNARDOS can consent*	DCJ consent is required	Actions/DCJ Delegation/Notes
Contraception prescription of medication and devices for contraceptive purposes and also gynaecological issues (e.g. diaphragm, contraceptive implants).**	Yes	No	No	Yes	DCJ delegation for children who are not mature minors: MCS Action: Identify any concerns as to the use of contraception and use the online Mandatory Reporter Guide (MRG) to determine whether risk of significant harm is suspected. Report suspected ROSH to the Child Protection Helpline on 132 111 (open 24 hours/7 days) e.g. sexual partner which does not meet criteria for adolescent consensual peer sex. Share information with DCJ under Chapter 16A as appropriate* For mature minors**: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
Drug and Alcohol rehabilitation treatment programs	Yes	No	Yes	Yes	DCJ delegation for children who are not mature minors: MCS For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
End of life medical intervention/decisions this includes the withdrawal of treatment and endorsement of End of Life Plans.	Yes	No	No	Yes	DCJ Delegation: Secretary For mature minors: DCJ consent is required in addition to the consent of the mature minor.
Medical treatment involving surgery (non-urgent) – on advice of medical practitioner this includes elective surgery including breast reduction and plastic surgery for medical reasons.	Yes	No	Yes	Yes	DCJ Delegation for children who are not mature minors: MCS For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
Medical treatment for terminal illness	Yes	No	No	Yes	DCJ Delegation for children who are not mature minors: DCS or Director Metro Intensive Support Services For mature minors: Barnardos/DCJ consent is not required. However decisions relating to treatment should be discussed with the caseworker under 16A.
Psychiatric Hospital – admission	Yes	No	Yes	Yes	DCJ delegation for children who are not mature minors: MCS For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
Psychiatric Hospital – treatment giving consent to time limited seclusion, physical restraint, chemical restraint or sedation of a child in a psychiatric hospital.	Yes	No	Yes	Yes	DCJ delegation for children who are not mature minors: DCS or Director Metro Intensive Support Services. For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
Medical Treatment during pregnancy including consent for intrapartum drugs nitrous, opiate, epidural or general anaesthetic should be obtained prior to birth and be included in birth plan developed with DCJ in antenatal period. For emergency procedures required during labour refer to emergency medical treatment.	Yes	No	Yes	Yes	DCJ delegation for children who are not mature minors: MCS For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
Termination of pregnancy	Yes	No	No	Yes	DCJ delegation for children who are not mature minors: MCS Identify any concerns as to the circumstances surrounding the pregnancy and use the online Mandatory Reporter Guide (MRG) to determine whether risk of significant harm is suspected. Report suspected ROSH (e.g. concern about sexual abuse) to the Child Protection Helpline on 132 111 (open 24 hours/7 days). For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
Testing – DNA testing to establish parentage.	Yes	No	Yes	Yes	DCJ delegation for children who are not mature minors: MCS For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
Testing – where the purpose of the testing is to determine a child’s HIV or Hepatitis C status and testing has been advised as necessary by a medical practitioner****.	Yes	No	Yes	Yes	DCJ delegation for children who are not mature minors: MCS and MCW For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework
Testing – where the testing is necessary as advised by a medical practitioner and involves surgery or an invasive procedure (for example internal cameras).	Yes	No	Yes	Yes	DCJ delegation for children who are not mature minors: MCS For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework.
Testing – where the testing is not necessary for the medical treatment of the child but is for another reason (for example to contribute to research).	Yes	No	No	N/A	DCJ would not support the testing of a child unless the testing is necessary for their medical treatment.
Any non-emergency treatment intended or likely to render the child permanently infertile	No	No	N/A	N/A	The Guardianship Division of the NSW Civil and Administrative Tribunal, Family Court of Australia or Supreme Court must authorise this procedure for minors (0-18 years old). DCJ Delegation: DCS after consent has been given by the tribunal/court.
Vasectomy or tubal ligation	No	No	N/A	N/A	The Guardianship Division of the NSW Civil and Administrative Tribunal, Family Court of Australia or Supreme Court must authorise this procedure for minors (0-18 years old), as it is special medical treatment under s175(5) of the Care Act.
Any medical treatment that involves an experimental procedure that does not conform to the document entitled National Statement on Ethical Conduct in Research Involving Humans published by the National Health and Medical Research Council (NHMRC) in 2007 and updated in 2013.	N/A	N/A	N/A	N/A	This is an offence under s175(1), Children and Young Persons (Care and Protection) Act 1998.
The administration of a drug of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966 over a period totalling more than 10 days in any period of 30 days is special medical treatment under s175(5) of the Care Act.	N/A	N/A	N/A	N/A	The administration of a drug of addiction is an offence under s175(1), Children and Young Persons (Care and Protection) Act 1998 unless an exemption applies or the NSW Civil and Administrative Tribunal consents to the treatment^. Note: The general exemption provided by the Secretary permits the administration to a child of any drug of addiction for the treatment of cancer; and dexamfetamine, and methylphenidate for the treatment of narcolepsy^^.
Gender affirming healthcare	Yes	N/A	No	Yes	The person who holds parental responsibility must also consent to the treatment commencing. DCJ Delegation: Legal advice must be obtained on matters regarding gender affirming health care for all children in care as careful consideration is required before the relevant delegate can consent to treatment.^^^
Medical and Forensic examination for children and young people who are victims of violence, abuse and neglect includes the taking and analysis of samples and the use of any machine or device that enables or assists in the examination of a person. Medical and Forensic examination for children and young people who are victims of violence, abuse and neglect includes the taking and analysis of samples and the use of any machine or device that enables or assists in the examination of a person. For young people over 16 years, there are 2 parts to the consent for a medical forensic examination: 1. Consent to be examined 2. Consent release information to Police. For children under 16, if consent is given to complete an examination, samples and other forensic evidence are taken and released automatically to the police (for which temporary hospital storage is not an option). For young people over 16, procedure includes a temporary hospital storage option for Sexual Assault Investigation Kits if they are undecided about releasing to the police*^.	Yes	No	Yes	Yes	DCJ Delegation if child is not a mature minor: MCS Where health clinicians require urgent consent for a medical forensic examination after hours contact the Child Protection Helpline on 132 111 (open 24 hours/7 days). The Helpline should ensure that calls are directed to the After Hours Response Team Manager Client Services. For mature minors: Barnardos/DCJ consent is not required. Use the online Mandatory Reporter Guide (MRG) to determine whether risk of significant harm is suspected. Report suspected ROSH to the Child Protection Helpline. Consider sharing information with DCJ under Chapter 16A to inform holistic casework. For mature minors who are not at suspected risk of significant harm or information is not shared with DCJ under Chapter 16A, the young person should be supported to speak to their caseworker about any experiences of assault and health care received
Botox injections recommended by a medical practitioner – if anaesthetic is required as part of administration.	Yes	No	Yes	Yes	DCJ Delegation if child is not a mature minor: MCS For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework
Botox injections recommended by a medical practitioner – if anaesthetic is not required as part of administration	Yes	Yes	Yes	No
Male circumcision – if requested for religious or cultural reasons**^	Yes	No	No	Yes	DCJ Delegation if child is not a mature minor: MCS – consent should be based upon medical evidence, consideration of risks and benefits, cultural and family input. For mature minors: Barnardos/DCJ consent is not required. However, health workers and carers should support the young person to inform their caseworker to support holistic casework which may include consultation with the birth family.
Therapeutic Psychological Support e.g. counselling or course of counselling treatment	Yes	N/A	N/A	N/A	All children in OOHC are required to have a Health Management Plan (HMP). A recommendation that a child requires Therapeutic Psychological Support should be included in their HMP developed by their local OOHC Health Coordinator through their participation in the OOHC Health Pathway Program. The caseworker should ensure this Plan is shared with the child’s carer and recommendations incorporated into the case plan. The caseworker is responsible for ensuring the HMP is implemented. For mature minors: Health workers and carers should support the young person to inform their caseworker to support holistic casework.
Allied health service e.g. speech pathology, occupational therapy, physiotherapy or course of treatment	Yes	N/A	N/A	N/A	All children in OOHC are required to have a Health Management Plan (HMP). A recommendation that a child requires Allied health services should be included in their HMP developed by their local OOHC Health Coordinator through their participation in the OOHC Health Pathway Program. The caseworker should ensure this Plan is shared with the child’s carer and recommendations incorporated into the case plan. The caseworker is responsible for ensuring the HMP is implemented. For mature minors: Health workers and carers should support the young person to inform their caseworker to support holistic casework.

(* Barnardo’s exercises the powers of Parental Responsibility (PR) under Deed of Agreement. ** More information can be obtained about contraception and sexual health for young people in Caring for Kids Guide – See sexuality and sexual health. *** For more information about exchanging information under 16A see the DCJ PSP Learning Hub. **** An authorised carer should not be informed of the need for HIV or Hepatitis C testing specifically because doing so may inadvertently disclose a parent’s health information in breach of privacy legislation. However carers can be informed of the need for screening for blood borne viruses in general. Note if HIV or Hepatitis C testing is conducted and confirms that a child is HIV or Hepatitis C positive then a carer can be told, if they need to know, because this information is the child’s health information. Section 144 of the Care Act advises that any disclosures to a carer should be made to enable them to provide appropriate care for the child or young person, or to ensure the safety of the authorised carer and other members of their household. ^ See section 175(2)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). ^^ See General Exemption Order signed by the Secretary on 22 September 2020 pursuant to section 175(4A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - https://dcj.nsw.gov.au/documents/service-providers/out-of-home-care-and-permanency-support-program/health-and-education-pathways/General-Exemption-Notice-2018.pdf (PDF, 163.7 KB). ^^^ DCJ can contact their Legal Department for advice and NGOs their local Child and Family District Unit (CFDU). *^ Policy Directive Responding to Sexual Assault (adult and child) Policy and Procedures. **^ Under section 45 of the Crimes Act 1900 it is against the law to circumcise a woman, girl or female baby.)

Last updated:

23 May 2024