Doctors flout sterilisation law
08.02.1997
SOME subjects concerning basic human rights, which for too long have been discussed only in whispered tones, need bringing into the open.
A serious example is the issue concerning termination of pregnancies of intellectually impaired women and girls and the sterilisation of young impaired boys and girls.
Evidence abounds in medical circles that in Queensland proper procedures requiring Family Court approval before such action is taken are being ignored.
Several shocking examples involving legal action are due to become public in the coming weeks. But this is very much a story with two sides.
In the community there are several thousand children and adults classified as suffering an intellectual impairment, either congenitally or caused through a later accident or illness.
The anguish of the parents and siblings of these citizens must be appreciated in any considerations, particularly where hard and fast laws are formulated. And paramount is the welfare and lifestyle interest of the impaired person.
The situation which inevitably faces the parents of an affected daughter is how to assist that teenager through the traumas of puberty.
The allegation commonly made is that the initial response of many doctors is to have the young woman sterilised. A similar response occurs in some instances with young intellectually impaired men _ they go through a castration or vasectomy operation.
That subject has attracted the attention of University of Queensland researchers for some years but they have been unable to get funding to establish just how widespread is the practice.
Another example of special medical procedure would be in the case of donation of non-regenerative tissue _ proposing one child of the family who is unable to give an informed consent donates a kidney to a brother or sister or another person.
Less common is the situation where a young person has been born with both male and female characteristics and a determination as to their gender is sought through surgery.
So intricate _ and of community concern _ is the issue of protecting the medical rights of children that a book outlining the rights and obligations of all stakeholders has been produced. It is being released at a conference at the Commonwealth Law Courts in Brisbane today.
The work has been done by project officers Donna Cooper from the Legal Aid Office and Susan Brady from the Department of Families, Youth and Community Care.
The foreword is written by the Chief Justice of the Family Court, Justice Alastair Nicholson, who discloses that two issues have concerned him for some time.
Justice Nicholson wrote: ``First, the legal obligation to obtain court authorisation is not as widely known as it ought to be among professionals and the community at large. This leaves children without the protection of the law and professionals who perform unauthorised procedures at risk of liability.
``Secondly, the court's authorisation is meant to be given only where a judge is satisfied that the special medical procedure is a step of last resort.
``It is therefore imperative that children, their families and those who are supporting them have every opportunity to be informed about services which may address the needs which underlie an application and for them to have assistance where necessary in accessing these services.''
The booklet, titled A Question of Right Treatment, sets out to explain in plain English the types of procedures which require authorisation, how each of the key organisations can help when a special medical procedure is being suggested and the steps along the legal pathway towards authorisation.
The authors have referred to the 1992 High Court decision referred to as ``Marion's Case'' which established that the right to consent to the sterilisation of a child was not within the ordinary scope of parents' or guardians' powers.
They wrote: ``This decision was made due to: The grave consequences that would result for the child from an incorrect decision; and the significant risk of making the wrong decision as to whether such a procedure would be in the child's best interests.
``The High Court considered the rights and wellbeing of the child to be so important that it said there should be greater than usual accountability and that the decision should be made by an objective, independent umpire.
``The Family Court of Australia was named as an appropriate court to decide such matters.''
It is pointed out that, apart from grave and irreversible medical treatments such as sterilisation, there are other medical treatments which may not be grave or irreversible but may be of significant risk or be ethically sensitive or disputed.
An example given is where a medical person believes a significant procedure is necessary to protect the health and wellbeing of a child but the child's parents or guardian disagree and refuse to consent.
Another example _ more common, one would presume _ is where parents disagree with each other about whether a significant procedure should be undertaken. Perhaps this would arise more commonly where there is an acrimonious parental separation.
Legal and medical representatives concerned with this issue point to the fact that Queensland is the only state in Australia that does not have a legislatively appointed Guardianship Tribunal. This independent body (answerable to Parliament) in other states has the power to take evidence and then form a view as to whether a person has a decision-making ability.
A decision is then made on the needs of the person and whether a guardian is needed to consent to a range of lifestyle issues which will enhance the quality of life of that person.
Can it really be true, as research suggests, that in Queensland girls as young as 11 are being subjected to sterilisation procedures?
Is every avenue exhausted before such action is taken (as is suggested by Chief Justice Nicholson)?
Are some doctors being honest when they respond that the child involved had a pathology _ a diseased organ _ which necessitated a hysterectomy or tubal ligation?
Or are they just playing God and assuming that they know what is best for everyone concerned, when what they are actually doing is nothing more than a grievous assault on the child and an abuse of that person's basic rights?
A starting point in Queensland to ensure that intellectually impaired children and adults are catered for in a manner befitting a caring society would be the establishment of a Guardianship Tribunal.
