Australian Speech Pathologists: consent to treatment for children aged 0-13 years with separated or divorced parents

If you work with kids and provide quality, client-centred care, you really work with families. Sometimes, you’re working with Mum and Dad and the kids together. Other times, you might be working with a single parent, alternating parents, a relative (e.g. a grandparent), a guardian or another carer.

One question that crops up a lot in speech pathology forums is about what to do if you are working with a child whose parents are separated, going through divorce proceedings or divorced. This is a complex area of law and practice (particularly for children who are 14 years old or older – a topic for another day).

For children aged 0-13 years, here are some principles I use to manage the risks:

  • In most cases, the consent of either parent to provide speech pathology services to their child is sufficient. The Family Law Act 1975 (Cth) makes it clear that:
    • both parents are responsible for the welfare of their children (including healthcare) until their children turn 18;
    • there is a presumption that arrangements which involve shared responsibilities and cooperation between parents are in the best interests of children (section 61DA);
    • each parent of a child has responsibility for the child unless:
      • the court makes a parenting order to the contrary; or
      • the parents make a parenting plan that allocates parenting responsibility differently; and
    • a change in the relationship of the parents – e.g. separation, divorce, marrying or remarrying – does not affect the basic rule that each parent has responsibility for the child (section 61C).
  • If a non-parent relative attends with a child, I usually ask to see written confirmation from a parent authorising the relative to consent to assessment and treatment for the child.
  • If a guardian attends with a child, I usually ask to see evidence of the guardianship.
  • If a delegate of the guardian attends with a child, I usually ask to see evidence of the guardianship and a written delegation of the authority to consent from the guardian to the delegate.
  • In cases where I know that the parents have separated, are divorcing or are divorced, and in particular, where it is clear Court proceedings are underway, I ask the attending parent to confirm if any parenting orders have been made or are pending, or if any parenting plans have been agreed that affect the rights of the parents to make healthcare decisions for his or her child and document the response (e.g. in progress notes). Documenting the attending parent’s response to this question can be important, e.g. if you are later subpoenaed by the other parent to provide documents or to appear in Court to provide evidence.
  • If parenting orders have been made by a Court that appear to give one parent the sole right to make decisions for the child’s ‘day-to-day welfare and development’ or, more specifically, to make healthcare decisions for the child, consent from that parent must be obtained in accordance with the order. Without such consent, I will not assess or treat the child.
  • If there are no Court orders in place, and one parent consents to you treating a child and the other parent contacts you to refuse consent, I try to get the parents to talk to each other to make a decision about what they think is in the best interests of the child. I also try to inform each parent objectively about the risks and benefits of different assessment and/or treatment options (including no treatment). This usually works.
  • If the parents can’t reach an agreement on whether the child should be treated, I’m reluctant to assess or treat the child. If Court proceedings are threatened or in progress, I might hold off assessment or treatment and suggest that the parents seek legal advice on the matter in the context of their wider Court proceedings.
  • At each stage, I document all communications, keep my input factual and evidence-based, and take great care not to do or say anything to any person that could make it appear that I am “taking sides”.
  • Consistent with principles of Australian family law, my paramount concern is the welfare of the child and my key professional obligations are to the child. For example, I remain aware of my obligations as a mandatory reporter under child protection legislation in my State.

Further reading:

Disclaimer: This article does not constitute any kind of legal advice, opinion or recommendation about rights, obligations, remedies, defences, options, or strategies. You should obtain legal advice specific to your circumstances.


Speechies in Business Speechies in Business
Speechies in Business is owned and operated by David Kinnane, a Certified Practising Speech Pathologist, lawyer, writer and speaker in private practice in Sydney, Australia.  You can read more about David’s professional background, qualifications and experience here.David also co-owns and co-manages Banter Speech & Language, an independent private speech pathology clinic, and Bodkin Wood Legal & Advisory, a law firm specialising in allied health issues.
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