Human Rights and Equal Opportunity Commission (HREOC): Submission on the Draft Model Bill to regulate the sterilisation of children with an intellectual disability


In late 2006, the Standing Committee of Attorney’s General (SCAG) released for consultation, draft national, uniform legislation ‘Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006’, which sets out the procedures that jurisdictions could adopt in authorising the sterilisation of children who have an intellectual disability. The Standing Committee of Attorneys-General (SCAG), is the national ministerial council made up of the Australian Attorney-General and the State and Territory Attorneys-General. SCAG provides a forum for Attorneys-General to discuss and progress matters of mutual interest. It seeks to achieve uniform or harmonised action within the portfolio responsibilities of its members. A number of organisations provided submissions in response to the Draft Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006, and some provided Women With Disabilities Australia (WWDA) with a copy of their Submission for our records. This Submission is from the Australian Human Rights and Equal Opportunity Commission (HREOC). Copyright 2006.


 

Mr David Dalton
Human Rights Branch
Attorney General’s Department
Robert Garran Offices
National Circuit
Barton ACT 2600
By email: david.dalton@ag.gov.au

17 November 2006

Dear Mr Dalton,

Thank you for the opportunity to provide comments on the draft model Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006 (‘draft Bill’).

As stated in earlier correspondence, the Human Rights and Equal Opportunity Commission welcomes the progress being made in seeking to clarify and harmonise laws relating to prohibiting sterilisation of children without authorisation from the Family Court or State Tribunal. The need for this harmonisation was highlighted in the Commission’s 1997 report The sterilisation of girls and young women in Australia: a legal, medical and social context.

The Commission makes the following comments.

Emergency situations

The Commission notes that under the draft Bill, it will not be unlawful for a person to carry out a sterilisation procedure if the procedure is directed at treating an organic malfunction or disease of the child that is likely to cause serious or irreversible damage to the child’s physical health (clause 5(5)(a)), or at relieving the child’s pain when an organic malfunction or disease that is terminal has reached a phase where there is no real prospect of recovery (clause 5(5)(b)).

This appears to be a reflection of the common law principle that a sterilisation procedure that is ‘a by-product of surgery appropriately carried out to treat some malfunction or disease’ can be lawfully consented to by a parent or guardian on the child’s behalf [1].

Other jurisdictions also make it lawful for a medical practitioner to carry out a sterilisation procedure in emergency situations, that is, where the procedure is necessary to save a person’s life or to prevent serious damage to the person’s health [2]. The Commission is of the view that emergency situations should also be made explicit in the draft Bill.

The draft Bill should have application to all children, not just those with an intellectual disability

The draft Bill currently provides a framework for an independent decision maker to decide whether a proposed sterilisation procedure should proceed in relation to a child with an intellectual disability.

The Commission has been made aware through anecdotal reports and the work of other organisations that concerns about unlawful sterilisations are not restricted to children with intellectual disabilities. Concerns have been raised, for example, that sterilisation procedures have been carried out on a number of young women under the age of 18 with cerebral palsy, a disability that involves no cognitive disability.

In the Commission’s view, the focus of the proposed legislation should be on providing the same level of protection for all children whenever a sterilisation procedure is contemplated. This is because the ‘invasive, irreversible and major’ [3] nature of a sterilisation procedure for any child involves significant risks in making the wrong decision, and particularly grave consequences if the wrong decision is made [4].

The Commission is therefore of the view that the draft Bill:

  • should not be limited to the situation of children with an intellectual disability, and
  • should provide the same framework for decision making in relation to any child in Australia, regardless of whether the child has a disability or not.

In light of this, the Commission is of the view that any references to disability should be removed from the draft Bill, and the title of the draft Bill should be amended to reflect this. The Commission believes the title of the Bill should be the Children (Regulation of Sterilisation) Bill 2006.

Matters Tribunal must be satisfied of before authorising a sterilisation procedure

The Commission is of the view that Clause 9 of the draft Bill should be amended to prohibit a Tribunal from authorising a sterilisation procedure unless it is satisfied that:

  1. the sterilisation is a procedure of last resort; and
  2. the sterilisation is in the best interests of child.

The Commission is of the view that a Tribunal should not be restricted to only authorising sterilisation in circumstances where the child is incapable of giving informed consent to the sterilisation procedure.

Sterilising a child is a decision with profound long term consequences. In light of the severity of the decision the Commission is of the view that even in circumstances where the child gives informed consent to the procedure it is necessary to consider whether the sterilisation procedure is a step of last resort and in the best interests of the child.

The Commission recognises that there are other views on this matter including that a child’s right to make choices should be respected and that choices of this magnitude should never be made until adulthood.

The Commission also acknowledges that the question of whether or not the child has the capacity to consent to undergo a sterilisation procedure is an important factor in considering the best interests of the child. In particular, the child’s objection to, or support for, undergoing a sterilisation procedure should always be an important factor in deciding whether the sterilisation procedure is in best interests of the child.

Sterilisation must be a step of last resort and in the best interests of the child

Clause 10(2) of the draft Bill sets out a list of matters that the Tribunal must take into account in deciding whether a sterilisation procedure is in the best interests of the child.

However, the Commission is concerned that the current draft does not refer to the fundamental point expressed by the majority in Re Marion that sterilisation is a ‘step of last resort [5].’

The majority in Re Marion note that in the context of medical management, ‘step of last resort’ is a convenient way of saying that:

  • alternative and less invasive procedures have all failed or
  • that it is certain that no other procedure or treatment will work.

In the context of sterilisation, this means that sterilisation can only be authorised if ‘other procedures or treatments are or have proved inadequate, in the sense that they have failed or will not alleviate the situation so that the child can lead a life in keeping with his or her needs and capacities’ [6].

In some jurisdictions, the principle that sterilisation is a step of last resort is reflected in the fact that consent will only be provided for a sterilisation procedure to proceed if the Tribunal is satisfied that it is necessary:

  • in order to save the child’s life or
  • to prevent serious damage to the child’s psychological or physical health.

The Commission believes clause 10(2) should clearly set out the matters that the Tribunal must consider in determining whether sterilisation is a ‘step of last resort’. These matters should, at a minimum, reflect the test set out by the majority in Re Marion.

Eugenic reasons

Clause 10(4) relevantly states that a sterilisation procedure is not in the best interests of a child if the procedure is to be carried out for eugenic reasons and for no other reason. The note to this clause explains that the effect of the clause is that a Tribunal may authorise a sterilisation procedure if the reasons for doing so include eugenic reasons, as long as the procedure is also in the best interests of the child.

In the Commission’s view, the draft Bill needs to be amended if the intention is that the inclusion of eugenic reasons in an application for the sterilisation of a child can be disregarded by a Tribunal as long as other reasons are given. In light of the human rights breaches experienced as a result of past practices of eugenics, it is highly questionable to have the draft Bill refer to the issue in this way.

Thank you again for the opportunity to comment on the draft.

Graeme Innes AM
Human Rights Commissioner
Commissioner responsible for Disability Discrimination
Tel: 61 2 9284 9692
Email: graemeinnes@humanrights.gov.au
www.humanrights.gov.au
17 November 2006


Endnotes

[1] Re Marion (1992) 175 CLR 218, 249-250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[2] Guardianship Act 1987 (NSW), s 37; Children and Young Persons (Care and Protection) Act 1988 (NSW), s 175(3).

[3] Re Marion (1992) 175 CLR 218, 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[4] Re Marion (1992) 175 CLR 218, 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[5] Re Marion (1992) 175 CLR 218, 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[6] Re Marion (1992) 175 CLR 218, 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[7] Guardianship Act 1987 (NSW), s 45(2); Children and Young Persons (Care and Protection) Act 1988 (NSW), s 175(2)(a).