Who decides medical treatment for a child?

When parents separate, disagreements can arise about important decisions affecting their children. One common area of conflict is medical treatment, particularly where parents have different views about medical procedures, psychological treatment or ongoing health care.

The question of who has the authority to make these decisions depends on whether the parents share parental responsibility and whether there are any existing Parenting Orders.

Medical treatment as a major long-term decision

Under the Family Law Act 1975 (Cth), decisions about a child's health and medical treatment are generally considered major long-term issues.

Major long-term decisions are those that significantly affect a child's care, welfare and development. They can include:

• significant medical procedures;
• ongoing medical treatment;
• psychological or psychiatric treatment;
• decisions relating to a child's disability or special needs; and
• other important health-related decisions.

Routine day-to-day medical decisions, such as taking a child to a doctor for minor illnesses or obtaining ordinary treatment, are generally made by the parent caring for the child at the time.

The role of parental responsibility

Parental responsibility refers to the duties, powers, responsibilities and authority parents have in relation to making decisions about their children.

Where parents have equal shared parental responsibility, they are generally required to consult each other and attempt to reach agreement about major long-term issues, including significant medical decisions.

However, equal shared parental responsibility does not mean parents must agree on every issue. If parents cannot reach agreement, the matter may need to be determined by the Court.

Disagreements about medical procedures

Disputes may arise where parents have different views about whether a child should undergo a particular medical procedure or treatment.

Examples may include disagreements about:

• surgery;
• vaccinations;
• specialist medical treatment;
• treatment for chronic conditions; or
• alternative versus conventional treatments.

The Court does not simply choose the parent's preferred position. Instead, the Court's focus is always the best interests of the child.

In determining what is best for the child, the Court may consider factors including:

• the medical evidence available;
• recommendations from treating doctors or specialists;
• the benefits and risks of the proposed treatment;
• the consequences of delaying or refusing treatment; and
• the views and circumstances of each parent.

What happens if parents cannot agree?

If parents cannot resolve a dispute about medical treatment, they may attempt to resolve the issue through negotiation, mediation or family dispute resolution.

If agreement cannot be reached, a parent may apply to the Court for Orders determining who has responsibility for the decision.

The Court may make Orders that:

• allocate sole parental responsibility for medical decisions to one parent;
• require parents to consult before making decisions;
• permit a particular medical treatment to occur; or
• make any other Order considered appropriate in the circumstances.

In urgent situations, such as where a child requires immediate medical treatment, urgent Court applications may be necessary.

This article is general information only and does not constitute legal advice. Every matter is different — speak with one of our family lawyers about your specific circumstances.

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