Non‑biological adult Consenting a child
can non‑biological adult can give valid consent in Australia?
1. Key legal concepts you must check first
| Concept | Why it matters | Practical evidence you need |
|---|---|---|
| Parental responsibility (PR) | Only a person with PR can consent for a child who lacks capacity. PR automatically rests with each biological parent unless a court order removes or limits it. | • Birth certificate linking adult to child • Parenting order allocating PR • Adoption order |
| Guardian / Custodian | In some states “guardian” is used for long‑term orders under child‑protection law; this person holds PR to the extent set out in the order. | • Final guardianship / custody order • Child‑protection placement advice form |
| Authorised carer / foster carer | Can consent only to the level permitted by statute or the written “authorisation to consent” issued by the Department (typically routine, low‑risk care). | • Carer authorisation card or letter • Medical & Dental Consent Tool (NSW) |
| Mature minor (Gillick competence) | If the child has “sufficient understanding and intelligence” to grasp the nature & consequences of the treatment, their own consent is sufficient; no adult consent is needed. | • Clinician’s documented assessment of capacity for that treatment episode |
| Next‑of‑kin | Has no automatic legal authority to consent. Only relevant if they also hold PR or an authorising order. | — |
2. Step‑by‑step consent checklist for a non‑parent adult
- Assess the child’s capacity first (Gillick test).
If competent → obtain child’s consent; still encourage family involvement where appropriate. NSW Health - Identify who currently holds PR.
- Ask to see one of the documents above.
- For separated parents, either parent with PR may consent to routine care; major or irreversible treatment should involve both or a court if dispute.
- If the accompanying adult is a foster/relative carer
- Sight their departmental “authorised carer” letter/card.
- Ensure the proposed treatment fits within the level of consent delegated to them (routine vs. major). Otherwise, escalate to the Department delegate.
- If no valid authority is produced and the situation is non‑urgent
- Defer treatment until lawful consent is obtained.
- Document circumstances, advice given, and plan.
- Emergency / necessity
- If delay endangers life or causes serious harm, you may treat without consent under common‑law necessity and relevant state provisions. NSW Health
- Documentation
- Record capacity assessment OR sighted authority documents.
- Note any attempts to contact parents/Department.
- File copies/scans of court orders or authorisation letters.
3. Where your draft needs tweaking
| Your point | Refinement |
|---|---|
| “Confirm Guardianship” | Use “parental responsibility or equivalent court/Department order” rather than “guardianship” unless the order specifically says “guardian”. |
| “Authorization by Parents” | A simple letter from parents is enough only for low‑risk or routine care and only if those parents still hold PR. For vaccinations, surgery, or anything irreversible, rely on formal PR evidence. |
| “Next of Kin” section | Next‑of‑kin status by itself does not provide legal authority. Remove unless that person also holds PR. |
| “Primary Carer” | Daily care does not confer consent rights unless backed by PR or a statutory delegation. Clarify accordingly. |
| Missing | Add Gillick competence and emergency doctrine; both override the adult‑consent questions. |
Bottom line
- A non‑biological adult can consent only if they hold current parental responsibility or a valid statutory delegation, or the child is Gillick‑competent.
- “Next of kin” and “primary carer” titles are insufficient on their own.
- Always document capacity/authority checks, keep copies of orders, and act in the child’s best interests.
When in doubt, pause non‑urgent care and seek advice from your medical defence organisation or hospital legal team.