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The Supreme Court of Queensland was recently asked to decide whether 13-year-old Beatrice (not her real name) was capable of providing her own medical consent to terminate her pregnancy.
Or on the other hand, was it necessary for the court to step in and authorise the procedure for her?
The application was brought by the West Moreton Hospital and Health Service, invoking the Court’s protective parens patriae jurisdiction over children.
Beatrice had been referred to the hospital after seeking a termination of pregnancy. Her personal circumstances were troubled. She lived with her mother and siblings and had little contact with her father.
She had been expelled from school earlier that year and had recent involvement with the criminal justice system cannabis use and alcohol consumption.
Because Beatrice was under 18, the critical legal question was whether she possessed sufficient maturity and understanding to give legally valid consent to medical treatment.
Her pregnancy was about five weeks advanced.
A minor can consent to treatment if he or she has “sufficient understanding and intelligence” to comprehend fully what is proposed.
In practical terms, a child who satisfies that threshold is said to be “Gillick competent” in reference to ta 1986 English case where the House of Lords ruled Mrs Gillick could not obtain an order that would prevent adolescent girls from accessing contraception through a doctor without a parent’s consent.
The test operates in two stages. First, the court determines whether the minor has achieved Gillick competence. If the child does possess that capacity, the decision about treatment rests with the child.
If the child lacks that competence, the Court may exercise its parens patriae jurisdiction and determine what course of action is in the child’s best interests.
Such a decision does not rest with the parents because termination of pregnancy is not within the category of medical procedure – like an appendectomy or vaccination – for which parental consent is sufficient.
The proposed procedure raises particular difficulties because it is both a medical and deeply consequential decision. Queensland’s Termination of Pregnancy Act permits a doctor to perform a termination within the first 22 weeks of pregnancy, but the Act does not create special rules about consent.
Ordinary principles of consent to medical treatment therefore continue to apply.
A substantial body of medical evidence was placed before the Court.
A nurse practitioner had met with Beatrice and her mother and explained the options available: continuing the pregnancy, adoption, medical termination, or surgical termination.
The nurse and a social worker formed the view that she did not demonstrate a clear understanding of pregnancy or the implications of termination.
An obstetrician and gynaecologist also provided detailed evidence about both the procedure and Beatrice’s decision-making capacity.
The doctors’ assessment of Beatrice’s capacity was cautious. She appeared overwhelmed when discussing termination. She could repeat some information but struggled to appreciate the broader implications of the decision.
In their view Beatrice might be capable of consenting to simpler medical decisions, such as vaccination or contraception, but a termination of pregnancy was a permanent and complex decision requiring a deeper level of understanding.
They therefore concluded that she was not Gillick competent.
Counsel for the Attorney-General appeared as amicus curiae, assisting the Court particularly on the interaction between the Human Rights Act and the Court’s protective jurisdiction.
Justice Michael Copley ultimately accepted the hospital’s submission that Beatrice lacked the capacity to provide informed consent. Her only rudimentary understanding of the medical procedure and lack of comprehension of the longer-term consequences of either termination or continuing the pregnancy were evident.
The court therefore declared that she was not Gillick competent for the purpose of consenting to the procedure.
Turning to the second stage, Justice Copley observed that the medical evidence indicated that termination posed relatively low physical risks but continuation of the pregnancy could expose Beatrice to significant physical, psychological and social burdens including long-term consequences for education, mental health and social development.
He therefore authorised the hospital and its staff to perform the termination, either medically or surgically, as soon as practicable.
The court also made strict confidentiality orders protecting Beatrice’s identity and sealing the court file, recognising the intense sensitivity of proceedings involving a child and reproductive health.
West Moreton Hospital and Health Service v B [2025] QSC 304 Copley J, 11 November 2025
Categories: Medical Negligence