United Kingdom Journals

		[2000] 2 Web JCLI

Australia's Recommendations for the Sterilisation of the Mentally Incapacitated Minor - A More Rigorous Approach?

Melanie Fellowes, LLB, LLM

Lecturer in Law,
University of Huddersfield
<M.G.FELLOWES@hud.ac.uk>

Copyright © 2000 Melanie Fellowes.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

This article provides an examination of the common law position in Australia on the sterilisation of a mentally incapacitated minor, the limited legislation in place in two of the states and the Australian Family Law Council's published recommendations for a uniform approach across states and territories. The proposals can be compared with the current position in the U.K., in particular the more recent approaches to such cases, and whether these signify a more rigorous analysis of the need for such treatment or can merely be distinguished on their particular facts. A brief summary is also given of the Australian legislation relating to the sterilisation of a mentally incapacitated adult and whether this is satisfactory or provides inconsistent protection to a minority group. In conclusion it is submitted that although the U.K. has seen numerous consultation papers and reports we are no nearer to definitive legislation which will adequately protect the mentally incapacitated from what may possibly be an unnecessary violation of their rights.

Contents

Introduction

Common law
State Legislation
The Family Law Council's Recommendations

• Stage 1
• Stage 2
• Stage 3
• The best interests test
• Who should determine sterilisation applications?

The mentally incapacitated adult in Australia

Conclusion

Bibliography

Introduction

In November 1994 the Australian Family Law Council published its recommendations relating to the 'Sterilisation and Other Medical Procedures on Children', its inquiry being prompted by the uncertainty which prevailed throughout Australia on this sensitive, controversial issue. The Standing Committee of Attorneys-General is considering the report, which was referred by the Commonwealth Attorney General in February 1995. Although legislation does not appear to be imminent, the recommendations may be worthy of analysis, given the UK Government's recent decision not to proceed at present with legislation regarding the independent supervision of adult sterilisations (Making Decisions, 1999). Further consultation seems inevitable in the U.K. prior to any definitive legislation. Therefore, is it possible to learn anything at this stage from the Australian recommendations, given that many of the points at issue apply to minor and adult alike?

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Common law

The common law position in Australia on the sterilisation of mentally incapacitated minors is currently governed by Marion's case - Sec, Dept. of Health and Community Services v JMB and another (1992) 106 ALR 385. A clarification was necessary given the four previous decisions of the Family Court which had demonstrated that authority was divided as to the rights of the child's parents to make a decision regarding sterilisation and the requirement of court authorisation.

In 1988 in Re a Teenager (1988) 94 Australian FLR 181 a hysterectomy was authorised for a 14 year old girl who was intellectually disabled. The girl suffered from a phobic reaction to blood and it was submitted that menstruation would be likely to affect her development and quality of life. Cook J. concluded that authority for the procedure could be provided by the parents of a child and that the sanction of the court was not required. The judge examined the rights of a family to make such decisions and the point at which a court should be allowed to intrude into the family unit. He recognised the point made in Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112, that parental authority was a dwindling right, but he also considered that in most cases, including where decisions were made as to important medical treatment, the parents were the best judges as to a child's welfare.

In the second case to deal with this issue, Re Jane (1988) 94 Australian FLR 1, Nicholson C.J. criticised the above decision. Rather, he believed that the child's welfare should be paramount, disagreeing with the emphasis Cook J. had placed upon the rights of parents. He considered that parental consent is insufficient when the medical procedure is to involve interference with a basic human right such as that of procreation. In addition he did not share Cook J.'s confidence that the medical profession would be able to protect the child by acting as a safeguard, recognising that there are members of any profession who may have misguided, albeit sincere, views. The proposed hysterectomy was nevertheless allowed as it was held to be in Jane's best interests. The reasons submitted for the hysterectomy were that Jane would experience difficulties in coping with menstruation, although menses had not commenced at that point, and she was also at risk of sexual assault and so of an unwanted pregnancy.

The requirement of court approval was reiterated by Ross-Jones J. in Re Elizabeth (1988) 13 Australian FLR 47, where the proposed operation is non-therapeutic and involves interference with a basic human right.

Yet in A-G (Qld) v The Parents; In Re S [1989] 98 Australian FLR 41, Simpson J., using similar arguments to Cook J., stated that parents, as guardians, did not have to seek the court's consent to carry out any medical procedure on a child, even if that entailed interfering with a basic human right and the main aim of the operation was non-therapeutic. He placed particular emphasis on the rights of the parents as carers and also the fact that an application to court would involve additional financial strain.

Clarification was thus clearly necessary and finally, in Marion's case, an appeal was made to the High Court which determined the law before referring the decision back to the Family Court.

By a majority of four to three the High Court decided that the Court's consent is required in cases of non-therapeutic sterilisation.⁽¹⁾ Parents or guardians can thus only authorise the procedure if the sterilisation is a by-product of surgery to treat a malfunction or disease.

It was held that a sterilisation procedure is to be distinguished from other medical treatment as it is invasive and irreversible. There is also the constant risk of the wrong decision being made, the consequences of this being recognised as particularly serious.

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State Legislation

New South Wales and South Australia are the only two States with legislation relevant to the incapacitated minor.⁽²⁾

In New South Wales the age of the child will determine which statute governs the possible sterilisation procedure. If the child is under 16 then the appropriate Act is the Children (Care and Protection) Act 1987 (NSW). Section 20B of the Act provides that a registered medical practitioner can only perform "special medical treatment" on a child under 16 if that practitioner believes that it is necessary, as a matter of urgency, to carry out the treatment to save the child's life or to prevent serious damage to the child's health. Alternatively the Supreme Court can consent to the carrying out of the treatment, but again only if it is satisfied that the treatment is necessary to save the child's life or prevent serious damage to health.

The definition of "special medical treatment" includes any medical treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out. The Act concerning those under 16 appears, therefore, to offer the most stringent of safeguards for the mentally incapacitated minor.

The Guardianship Act 1987 NSW concerns the mentally incapacitated person who is 16 or above. The carrying out of "special treatment" is dealt with in s.33(1), s.45(2) providing that "special treatment" can only be carried out with the consent of the Guardianship Board. The Board must be satisfied that the treatment is necessary to save the individual's life or prevent serious damage to health.

The only exception to the requirement of the Board's consent is provided for in s.37(1) where a medical practitioner who is carrying out or supervising the treatment believes that the sterilisation is necessary as a matter of urgency to save the individual's life or to prevent serious damage to health. Otherwise, sterilisation of children of 16 or above is prohibited. The Board had approved only one sterilisation for an applicant between 16 and 18 up to January 1994 (see Ford 1996). It is thought that it has been difficult to prove that a sterilisation is necessary to prevent serious damage to health (Law Com Western Australia 1994). The Board does not use the wider 'best interests' test, nor does it examine the child's capacity to reproduce or other issues such as the quality of life expected for the child as the emphasis must be on whether a sterilisation would be required to avoid serious damage to health. The result in N.S.W., for both the under 16 year old and the 16 to 18 year old, is a more or less absolute prohibition on the sterilisation procedure.

In South Australia the sterilisation of the mentally incapacitated (both minors and adults) is governed by Part 5 of the South Australian Guardianship and Administration Act 1993. It provides that "prescribed treatment" (which includes a sterilisation) can only be carried out on individuals incapable of providing effective consent if the South Australian Guardianship Board grants consent, otherwise any such sterilisation is an offence. Again, an exception is provided for in s.62, which deals with the situation where there are imminent risks to life or health. Section 61(2) states that the Board cannot consent to the sterilisation unless it is satisfied that it is therapeutically necessary for the sterilisation to be carried out on the person. Unfortunately no definition of "therapeutic" is provided.⁽³⁾

Alternatively it has to be satisfied that the person is unlikely to acquire at any time the capacity to give an effective consent, that the person is physically capable of procreation, and that the person is, or is likely to be, sexually active. It would also have to be established that there was no method of contraception that could be applied successfully in those circumstances. In the case of a woman having social, sanitary or other problems relating to her menstruation it would have to be shown that cessation of her menstrual cycle would be in her best interests and the only reasonably practicable way of dealing with the situation. In addition the Board must have no knowledge of any refusal to consent by the person concerned.

For two States, therefore, there are two possible routes for applicants to take: State legislation or use of the Family Law Act 1975. The case of P v P [1994] 120 ALR 545 addressed the issue of a possible conflict between individual State legislation and the 1975 Act. Although States can pass legislation with regard to the sterilisation of ex-nuptial children (i.e. those children whose parents have not been married), and State wards, there was doubt whether States can legislate for the sterilisation of children of a marriage. It was held that States can create additional legislation to authorise sterilisation but they can not remove or alter the existing powers of the Family Court of Australia under the Family Law Act. So should a State attempt to apply more restrictive criteria than those in Marion's case, thus narrowing the circumstances in which a sterilisation of a nuptial child may be authorised, that attempt will be ineffective. However, as the decision in P v P only applies to a child of a marriage the NSW legislation and that of South Australia may still apply to those whose parents are unmarried. The marital status of a child's parents, as well as the child's age, could therefore determine not only the decision-making body to which sterilisation applications can be made, but also as a result the actual decision taken.

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The Family Law Council's Recommendations

At present, therefore, the various State systems do not provide uniform guarantees for all children. Without equal protection applicants can seek authorisation from the court or tribunal which is most likely to provide the desired result, thus encouraging forum shopping. It was recognised that Commonwealth legislation was required to apply to all Australian children to ensure that any sterilisation of a child would only occur in exceptional and clearly defined circumstances, using specific criteria and resulting in consistent decision-making.

The Council recommended a new division in the Family Law Act 1975 to regulate the sterilisation of young people, so that any sterilisation of a child under 18 which is carried out other than in the prescribed circumstances will be unlawful. A three stage decision-making process is proposed.

Stage 1

The first stage deals with the four situations where sterilisation could never be authorised, providing stringent safeguards for the incapacitated minor, clearly necessary given the sometimes questionable range of reasons submitted for successful applications.

Firstly, sterilisation should never be authorised for eugenic reasons. Despite numerous denials of any eugenic aims underlying sterilisation authorisations the ghost of eugenics still lingers so this clear statement is to be welcomed. It is pertinent to note here in particular the English case of Re M (wardship: sterilisation), The Times, 1 December 1987, where Bush J. contended that eugenics had played no part in his decision yet emphasised that there was a 50% possibility that, should M give birth to a child, it would inherit her condition and an abortion would have to be performed.

Secondly, sterilisation could not be authorised purely for contraceptive purposes. The word `purely' implies that there must be another valid justification for the sterilisation in addition to that of contraception. The danger here of course is that the primary motive could still be contraception but that this could be disguised by promoting some other more therapeutic purpose as having equal or more weight, for example problems with menstruation. Rigorous investigations on behalf of the court are thus necessary to avoid this reason slipping through the net of legislation by becoming 'medicalised'. The risk is considerably reduced by the safeguards in place for the fourth situation dealt with below which avoid alleged menstruation problems merely being used to rubber stamp the application.

Thirdly, sterilisation should not be authorised in order to conceal or avoid the consequences of sexual abuse. Although it is unlikely that any application would be openly made to conceal the consequences of sexual abuse it cannot be denied that some cases have succeeded where emphasis has been placed on the risk of sexual abuse of the young girl or woman. Case law has evolved towards recognising that a sterilisation will do nothing to help the woman or girl who is being sexually abused, in fact if anything it could well assist the abuser in that there would be no outward evidence of such abuse occurring if the risk of pregnancy is removed. If there is a risk of abuse then it must be of concern to parents and carers alike who do not wish the woman or girl to be traumatised by the possible consequence, that of a pregnancy, but of equal, if not more concern, should be the welfare of that person who is being abused and who is suffering as a result.

The risk of possible sexual abuse and an unwanted pregnancy was one of the reasons submitted in the Australian case of Re Jane but the same reason has been put forward several times in the U.K. We only have to refer back to Re B (a minor) (wardship: sterilisation) [1987] 2 All ER 206 to note that as Jeanette, a 17 year old, had made provocative approaches to male members of staff and other residents, this led to the conclusion that she was at real risk of pregnancy. Although casual sexual relations were thought to be a possibility this risk in itself was not the subject of concern, rather the result of any such relations. Lord Hailsham stated (at p 212 f-g)

"... she has already shown that she is vulnerable to sexual approaches, she has already once been found in a compromising situation in a bathroom, and there is significant danger of pregnancy resulting from casual sexual intercourse."

Although in Re F (Mental patient: sterilisation) [1990] 2 AC 1 the subject of the sterilisation was an adult woman who was voluntarily participating in sexual intercourse, her partner was a resident: a schizophrenic who was also involved in sexual relationships with six other female patients. Given those facts particular care must be taken to ensure that the sexual activity was not in fact abuse, albeit not as evident as in other situations.

It has only been in more recent cases in the U.K. that we have seen what is hopefully a tentative climb up what was becoming a slippery slope (see Brazier 1990). There have been welcome indications of a more rigorous approach to a proposed sterilisation when risk of abuse is submitted as a primary reason for the procedure to be carried out. Thorpe J. made the fundamental point in Re LC (Medical Treatment: Sterilisation) (1997) 2 F.L.R. 258 that a sterilisation procedure would not be able to protect L from abuse. Medical evidence indicated that L would be unlikely ever to develop an interest in a sexual relationship and the degree of care and supervision she was receiving was held to be sufficient protection. It was held that a sterilisation was not required.

Again, in Re S (Medical Treatment: Adult Sterilisation) [1998] 1 FLR 944 Johnson J. was unable to find a foreseeable risk of sexual exploitation and so dismissed the application. If he had authorised the sterilisation in this particular case then he said that he could not envisage any future case where it would be refused.

At first reading, therefore, there seems to have been a change in approach. Or has there? If both women had been at risk and the standard of care and protection had not been as vigilant as it was, would the sterilisation still have been authorised? Indeed Johnson J. in Re S addressed this point and conceded that there would be a real likelihood (at 948 D)

"It is ironic that if a young woman is being cared for and supervised by caring and responsible parents, then the wish of the parents is to be overridden; whereas a similar decision will be upheld if made by parents who are careless and irresponsible."

What is clear in the Australian proposed legislation is that if the reason for the sterilisation is the risk of abuse then the procedure would not be authorised and this statement is essential. If no easy answer to the problem of pregnancy as a result of abuse is available then support and protection will have to be provided to avoid this possible consequence in other more appropriate ways.

Finally it was recommended that there should not be authorisation of a sterilisation before the commencement of menstruation, where any authorisation would be based solely on predictions about future problems to be encountered with menstruation. This contrasts with the case of Re Jane where the young girl had not commenced menstruation by the time the case was brought to court, it was not known for certain that there would be difficulties with management yet the proposed hysterectomy was authorised. Evidence influential to the decision was that Jane was affected by expressions of disgust by others when she soiled herself in public and that distress as a result of this would only increase with the onset of menstruation.⁽⁴⁾ This statement, together with the factors to be considered in Stage 3, ensures that menstruation problems cannot conveniently be used to obtain an authorisation form the court.

Any application that falls within the four situations above would thus be rejected at the first stage and already offers substantially more protection than the mentally incapacitated minor receives at present.

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Stage 2

The second stage states that there can only be sterilisation of a person under the age of 18 if the procedure is necessary to save life or to prevent serious damage to the person's physical or psychological health. Clearly the amount of protection granted to the minor will depend on how narrowly or widely this statement is interpreted. Without further explanations as to the meaning of `damage to physical or psychological health' the decision-maker would retain considerable discretion and, as has been evidenced in the past, the discretion is always in danger of being abused or, at best, used erroneously.

Stage 3

Therefore Stage 3 deals with what has to be considered in this context. When deciding whether there is serious damage to a person's physical or psychological health the decision-maker must consider certain factors which are laid down.

The feasibility of less permanent means of contraception must be seen to have been explored, if this is relevant. It is pertinent to note here that under Stage 1 a sterilisation cannot be authorised when it is purely for contraceptive purposes which, as pointed out above, infers that there has to be another justification for the sterilisation in addition to that of contraception.

In addition there must be an evaluation of the person's response to training in menstrual management if this is the problem. The wording here infers that this training must have been carried out prior to the application being made rather than what has often been predictions made as to the girl's response to menstruation without any substantial evidence.

Of relevance here is a recent report by researchers at the University of Queensland which pointed out that there was little evidence given in the courts of the considerable expertise available in the management of the intellectually disabled. In fact the courts had given a negative view of the skill developed in handling menstruation. It also pointed out that the surgical procedures proposed for the mentally incapacitated minor would normally only be prescribed for treatment of gynaecological abnormalities or disease which perhaps is rather damming of some earlier decisions (see Carlson and others, 1994)

The best interests test

Finally, if the decision-maker is inclined to approve the application at this stage, he must only do so if the procedure would be held to be in the child's best interests.

So, as in the U.K. the `best interests' test is again being advocated,⁽⁵⁾ but this time together with a prescribed set of criteria to be considered and after stringent previous safeguards have already been passed. In this context it is more of a fallback test, which is to act as a final, extra protection for the child. The Council acknowledges that the welfare test is relevant but in its present form too unstructured. It therefore prefers specific criteria to be provided in legislation. These criteria are not detailed in the Report but it advocates that guidelines such as those in Re Jane should be taken into account. These included consideration that the individual could in fact become pregnant, the possibility of suffering trauma or psychological damage in the event of pregnancy and the likelihood that the woman or girl would voluntarily become involved in sexual activity. Also included, and of potentially great concern, is the consideration that she may be exposed to situations where sexual intercourse is imposed upon her. This should surely only be a consideration that would result in a re-examination of the individual's care situation, not a focusing on the possible results of this exploitation. In addition it is in direct contrast to the third situation in Stage 1. Less drastic means of contraception should also be considered, taking into account possible future medical advances.⁽⁶⁾

Thus the best interests test received another nod of approval, albeit in a more developed and substantial form. At common law the majority of the court in Marion's case also chose to follow the English case of Re B in accepting the welfare test as its basis for deciding such cases. Conceding that the test is imprecise the court intended that it would be given further meaning through guidelines which would be developed by the judges, using medical and other advice. The guidelines would enable them to decide on the preferred course for a mentally incapacitated child in order for her to lead the kind of life her capacities and needs required. The court did in fact make an attempt to impose some kind of structure on what had been the discretionary content of the test, stating that any sterilisation should be a step of last resort, only to be followed when other less invasive procedures had failed. This was justified by the recognition of the fundamental right to inviolability and integrity.

Yet it was Brennan J. supplied the more expansive and interesting comments on the best interests test in his dissenting judgment. He argued for precise rules and an established hierarchy of values, otherwise the best interests test would inevitably depend on the values of the decision-maker. He conceded that the facts of each case will vary and that consequently some have argued that the law should not be too precise but without a checklist of general principles he felt that there would be insufficient protection for the mentally incapacitated child or woman.

He made this point again in P v P (1994) 120 ALR 545 at 569 when he stated:

"True it is that the exercise of many novel discretionary powers come to be guided by precepts derived from experience in their exercise, but the diversity of values and circumstances which would affect decisions to make sterilisation orders precludes any realistic expectation that decisions would not be made according to the idiosyncratic opinion of individual judges."

Both Brennan and McHugh J.J. in Marion's case supported the views of Professor Ian Kennedy on the inability of the welfare principle to resolve the sterilisation cases. Professor Kennedy has argued that the best interests test is not in fact a `test', rather a `crude conclusion of social policy', which allows the courts to believe that they are applying a principled approach while avoiding any detailed analysis of what the best interests are and what weight should be given to them (see Blackburn and Taylor, 1991). This also appears to be the view of Michael Bryan who has described the welfare principle as a

"smokescreen which conceals either an absence of coherent decision making or the pursuit by the courts of a hidden agenda." (see Bryan 1994)

These criticisms have, it seems, been addressed by the Council in their recommendations.

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Who should determine sterilisation applications?

The Council examined the options available which included establishing a new Specialist Commonwealth Tribunal or giving State or Territory Tribunals exclusive jurisdiction but ultimately decided to recommend that the Family Court of Australia should hear applications in all States and Territories for the proposed sterilisation of minors. In addition it was recommended that only specially trained judges should hear such applications and it should be policy that there would only be a court hearing after all other options have failed to produce a satisfactory outcome.

Specialist counselling and advisory services would be provided for applicants and children regarding sterilisation treatments and alternatives, using specially trained officers. As applications before the Family Court are very expensive for applicants it was also recommended that costs would be met by the Commonwealth Government.

Thus the recommendations would provide a system which would deal with all Australian children in the same way but would incorporate some of the more positive and tried and tested features of the Guardianship Boards.

The mentally incapacitated adult in Australia

The Australian proposals seem to have much to commend them as they would provide consistent protection throughout Australia for a minority unable to claim certain rights they are entitled to: inviolability and physical integrity. Given the shortcomings of the common law position the mentally incapacitated minor is in certain need of legislative protection. Yet many if not all of the above recommendations would also apply to, and be required for, the mentally incapacitated adult, whom, it is argued, do not receive consistent protection throughout the country. Although each State has enacted relevant legislation there are no standard procedures or safeguards to be considered. The suitability of tribunals to make decisions on sterilisation applications has even been doubted by Mr. Justice Nicholson who has pointed out that the expertise, procedures and requirements of such tribunals varies between states (see Nicholson 1993). He argued that decisions like these should be dealt with by the superior courts.⁽⁷⁾ Indeed it must be noted that the detail of the legislation is not uniform throughout the states and territories, most stating that any decision should be made in the best interests of the woman but not necessarily giving a definition of what will be considered a person's best interests. As illustrated above the NSW Guardianship Board focuses on the avoidance serious damage to the patient's health and thus the best interests of the patient is confined to that issue. In Victoria, however, the best interests test is used but with least restrictive alternative and current need as criteria to be considered. In the ACT a limited list of factors to be taken into account when considering the applicant's best interests are provided in s.53(4) of the Guardianship and Management of Property Act 1991. The use of varying criteria and procedures, including information required by the Boards prior to making decisions, will inevitably result in inconsistent decisions throughout the states. This is unjust and flies in the face of equal rights for each mentally incapacitated adult in Australia.

Thus, the position of the mentally incapacitated adult is that he or she may still be relying on provisions with considerable in-built discretion and may not be any better served by the current law than the minor is.

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Conclusion

The examination above of the proposals submitted in Australia must be of interest and assistance to the on-going consultation process with regard to possible legislation in this country. The same uncomfortable and difficult issues arise in each jurisdiction, but what may be different is each country's approach to the same. We are clearly not satisfied that the recommendations in the Law Commissions report Mental Incapacity (Law Com No. 231) are sufficient to offer the necessary protection to the mentally incapacitated adult. Given that Australia also seems to be dragging its feet on Commonwealth legislation perhaps it, too, is hesitant to finally proceed with its proposals. Each government is being seen to be doing something which politically may be a satisfactory short-term solution. However, for any mentally incapacitated minor or adult who may be the subject of a future application these safeguards are tantalisingly close but of no real benefit. Instead they must rely on the current position, whether it derives from the common law or inadequate legislation. Then they are at the mercy of the decision-maker's discretion which inevitably includes his or her own value judgements. Given history's treatment of the mentally incapacitated they now deserve to be granted the protection they require. They are entitled to a real attempt on our part to enable them to live as dignified a life as possible. It may be that many safeguards can not be put in place without considerable cost in terms of financial resources⁽⁸⁾, manpower, education and counselling for the individuals and their carers. If that is the case then do we dismiss this more pro-active approach as idealistic given the current economic climate and scarcity of resources? If so then our talk of rights and duties to those less fortunate is mere lip-service and is of little substance. Or do we face up to our responsibilities towards a minority who have suffered immense injustices in the past and who will never have the opportunity to demand their rights? To date they have had to rely on what society decides is in their best interests, according to the standards of the time. We have seen what such standards have resulted in, in the past - now we must make sure that our standards are as high as possible and that any demands on their behalf are all the more vociferous.

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Bibliography

Brazier, M (1990) 'Sterilisation: down the slippery slope?' 6 Professional Negligence 25.

Bryan, M (1994) 'Two cheers for welfare; the Marion case and sterilisation in Australia', 5 Journal of Child Law 40.

Carlson, G, Taylor, M, Wilson, J, Griffin, J (1992) Menstrual Management and Fertility Management for Women Who Have Intellectual Disability and High Support Needs: An Analysis of Australian Policy. Research Project, Commonwealth Department of health, Housing and Community Services, Canberra.

Carney, T, Tait, D and Deane, K (1994) 'Legal Regulation of Sterilisation: The Role of Guardianship Tribunals in NSW and Victoria' 8 Australian Journal of Family Law 141.

Family Law Council, Australia, (1994) Sterilisation and other Medical Procedures on Children, Australian Government Publishing Service, Canberra.

Ford, J (1996) 'The Sterilisation of Young Women with an Intellectual Disability: A Comparison between the Family Court of Australia and The Guardianship Board of New South Wales' 10 Australian Journal of Family Law 236.

Kennedy, I (1991) 'Patients, doctors and human rights' in Blackburn and Taylor (eds) 1 Human Rights for the 1990s 90.

Law Commission Report No. 231, Mental Incapacity, London HMSO February 1995.

Little, H (1993) 'Non-Consensual Sterilisation of the Intellectually Disabled: Potential for Human Rights and The Need for Reform' Australian Yearbook of International Law 203.

Making Decisions Government Report published 27 October 1999, (Cm 4465), in response to Green Paper Who Decides? Making Decisions on Behalf of Mentally Incapacitated Adults December 1997 (Cm 3803)

McHale, J (1998) 'Mental incapacity: some proposals for legislative reform' 24 Journal of Medical Ethics 322.

Nicholson, A (1993) 'The medical treatment of minors and intellectually disabled persons - United Nation Convention on the Rights of the Child, Article 23' - paper given to the First World Congress on Family Law and Children's Rights, Sydney 4-9 July, 14-15 as cited in The Law Reform Commission of Western Australia, Report on Consent to Sterilisation of Minors (October 1994), 99.

Footnotes

⁽¹⁾ The majority were Mason C.J., Dawson, Toohey and Guadron, J.J.J. Brennan, Deane and McHugh J.J.J. dissented.

⁽²⁾ Compare the situation for mentally incapacitated adults where each Australian state and territory (except Queensland) has legislation in place to deal with sterilisation applications. Pt 5 Guardianship Act 1987 (NSW); Pt 5 Guardianship and Administration Act 1993 (SA); Pt 4 Div 6 Guardianship and Administration Board Act 1986 (Vic); Pt 5 Div 3 Guardianship and Administration Act 1990 (WA); s.21 Adult Guardianship Act 1988 (NT); Pt V Mental Health Act 1963 (Tas); Guardianship and Management of Property Act 1991 (ACT). Queensland is considering Guardianship legislation but at present the Intellectually Disabled Citizens Council has powers relating to the sterilisation of mentally incapacitated adults under the Intellectually Disabled Citizens Act 1985.

⁽³⁾ For a view on the distinction between therapeutic and non-therapeutic see Brennan J.'s judgment in Marion's case.

⁽⁴⁾ See also Re a Teenager where an alleged phobic reaction to blood and a claim that the girl would not be able to cope with menstruation led to a hysterectomy being held necessary, again despite the fact that menstruation had not commenced.

⁽⁵⁾ See Re B (a minor) (wardship:sterilisation) [1987] 2 All ER 206 for best interests test applied to the sterilisation of minors and Re F (Mental patient:sterilisation) [1990] 2 AC 1 where the Bolam test was to be used for applications for the sterilisation of mentally incapacitated adults.

⁽⁶⁾ This more detailed set of proposed criteria within the best interests test can be favourably contrasted with the very limited criteria proposed in Report No. 231, although it too advocated a move away from a Bolam based test.

⁽⁷⁾ However see Carney, Tait and Deane (1994) where it is argued that the Guardianship Boards, at least in NSW and Victoria, appear to provide a fair system.

⁽⁸⁾ But note here that the local authority in Re LC, at 260 D, were prepared to raise supervision byemploying a waking night carer 7 days a week.