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Dilemmas confronting the medical profession regarding treatment provided to children are highlighted in a recent case involving the pregnancy of an 11-year-old child.
The court was asked to rule whether Celia (not her real name) had the legal capacity to decide to terminate the pregnancy and if not, what steps should be taken.
Queensland Health brought the application in circumstances of urgency: the pregnancy was early, the risks of continuation were rising, and the treating team needed a clear, lawful pathway to treat.
A minor can only consent to medical treatment if they have “sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.Such sanction is known as a “Gillick consent” after the leading English case that established the rule in 1985 which was followed by the High Court of Australia in 1992.
The absence of consent would make any medical treatment an assault on the child.
Queensland legislation adds a further twist: parents can consent to most ordinary treatment, but termination of pregnancy sits in the “special category” where parental consent is insufficient.
The Human Rights Act overlays rights to bodily integrity, health, privacy and protection of children, but does not extend those rights to the foetus.
Thus the issue was likely one for the Supreme Court which has the authority to act as a guardian for and intervene in favour of individuals who cannot care for themselves, particularly children. The power – known as the court’s “parens patriae jurisdiction” – can be used to authorise medical treatment when parents refuse to provide it.
The application came before Justice Frances Williams who had to decide if Celia was Gillick competent to consent to termination herself; and, if not, whether termination was in her best interests such that the court should direct same.
The evidence on Gillick competence was detailed and sobering.
Affidavits from the treating paediatrician, adolescent psychiatrist, registered nurse and gynaecologist painted a picture of a child whose chronological age already made capacity unlikely, and whose cognitive and emotional presentation pulled in the same direction.
Celia could say there was a “baby in her tummy” and understood in a superficial sense that “taking the medicine” would lead to her being “not pregnant”. But her grasp of the nature, risks and alternatives to termination was fragile and transient.
On one view she could parrot back basic descriptions of medical versus surgical termination; yet, when seen again the next day, she could not recall what had been explained.
Clinicians described her as abnormally disengaged, behaving more like a significantly younger child, with suspected low cognitive functioning and clear difficulty retaining information.
The psychiatrist observed that there was no mental illness preventing understanding – this was about developmental and cognitive limits, not psychosis or acute distress.
When asked directly about information she had been given, she often just shrugged.
The court, mindful that shrugging can be standard adolescent currency, nonetheless placed weight on that behaviour in the context of the broader evidence.
The court did not treat age as determinative but drew heavily on earlier rulings that suggested even a 12-year-old of average intelligence is unlikely to fully appreciate the immediate and long-term consequences of termination versus the life-altering consequences of continuing a pregnancy as a child.
Measured against those benchmarks, Celia’s superficial and fleeting understanding, combined with her difficulty retaining information and apparent emotional immaturity, led to a clear conclusion: she was not Gillick competent to consent to termination.
Once a Gillick consent was ruled out, the court’s parens patriae role was engaged. Here, the medical evidence shifted from capacity to best interests.
The gynaecologist’s affidavit, supported by literature, set out the heightened physical risks of pregnancy in an 11-year-old: increased hypertensive disorders, higher rates of pre-term birth and low birth weight infants, and greater obstetric complications.
The adolescent psychiatrist highlighted substantial risk of serious mental health sequelae – depression, anxiety, and broader psychosocial harm — magnified by C’s particular vulnerabilities and circumstances. Both clinicians were clear: the risks of continuing the pregnancy were greater than those associated with termination.
The treating team recommended medical termination (Mifepristone and Misoprostol) as the preferred method at that gestation, but sought authorisation for both medical and surgical options, including the ability to proceed to surgical termination if the medical process was incomplete. The treatment plan contemplated Celia being admitted as an inpatient, in a single room, with coordinated paediatric, psychiatric, nursing and midwifery support.
Crucially, although Celia lacked Gillick competence, her wishes were not ignored. Across multiple interviews she consistently expressed that she did not want to continue the pregnancy, wavering to “I don’t know” on only one occasion.
Her mother strongly supported termination. In the Human Rights Act framework, those views were relevant manifestations of Celia’s autonomy, even if not sufficient to ground legal consent.
Balancing Celia’s right to bodily integrity, privacy, health, and protection as a child against the inherent intrusion of a termination procedure, Justice Williams held that authorising termination was in her best interests.
The court declared that termination by medical or surgical means was lawful and necessary having regard to her current and future physical, psychological and social circumstances, and ordered that she may undergo, and the hospital may perform, the termination on or before the specified date.
Suppression orders were made protecting the identities of Celia, her mother, the hospital and staff.
A Hospital and Health Service v C [2025] QSC 178 Williams J, 9 April 2025
Categories: Medical Negligence