i was searching for something to use to critise an argument by tiassa in another thread and i found an interesting artical on "the marrion case", state and territory law and the family court
http://www.austlii.edu.au/au/journals/AJHR/1996/7.html
from this artical it apears that no single entity entirly has juristiction over sterlisation procidures for under aged interlectually disabled children (mainly girls) but that once a family court procidure has started any state or territory body loses its jurististion.
Now this artical is mainly about NSW and Victoria but i belive the SA guardianship board also has the power to hear these cases and in find myself in compleate agreement with the arguments against the family court holding juristiction.
Firstly the guardianship boards are designed and trained specifically to deal with medical decisions. They do it on a daily basis and they can do it fast when they have to. This is evidenced by the fact that the second a parent refuses blood products over medical advice the decision goes to the guardianship board and they can make a decision fast enough for the treatment to be delivered.
The family court doesnt have this training, there main funtion is to deal with finantial and lifestyle matters. Admitedly there finantial and other lifestyle matters which apear before the guardianship boards as well but there training in medical matters is second to no other court in australia. The state surpreme court in SA can hear some medical cases but in victoria especially these are ALL matters of the guardianship board.
There is one argument against the high court i disagree with though, that is in regard to "parental rights". Parents only have the right to act as the state demands and the state stipulates that only medically nessary treatments can be authorised by parents. Of course they dont have a right to refuse these treatments under the doctroin of medical nessacity but they do have a right to "authorise" them in the first instance. All non medically nessary treatments are the responcability of the state to determine. This can be evidenced by the fact that no one has a right to demand treatment against medical advice, only to refuse it.
There is one further reason for the state boards to have full jurstiction rather than the family court. That is that the people who apear in these cases will most likly fall under there juristiction anyway. For instance what about an a 17 year old person, if there parents make an aplication just before they turn 18 and the decision takes that long to be made then it has to start all over again in the state guardianship tribunal because all mentally incapaciated persons over 18 fall under there power. This is most interesting because in SA (and every state that i have herd about) medical maturity is automatically confered as soon as a person turns 16. There for we have two different courts arguing that they should have origional juristiction on the basis of age of consent being different for legal matters compared to medical treatment.
http://www.austlii.edu.au/au/journals/AJHR/1996/7.html
from this artical it apears that no single entity entirly has juristiction over sterlisation procidures for under aged interlectually disabled children (mainly girls) but that once a family court procidure has started any state or territory body loses its jurististion.
Now this artical is mainly about NSW and Victoria but i belive the SA guardianship board also has the power to hear these cases and in find myself in compleate agreement with the arguments against the family court holding juristiction.
Firstly the guardianship boards are designed and trained specifically to deal with medical decisions. They do it on a daily basis and they can do it fast when they have to. This is evidenced by the fact that the second a parent refuses blood products over medical advice the decision goes to the guardianship board and they can make a decision fast enough for the treatment to be delivered.
The family court doesnt have this training, there main funtion is to deal with finantial and lifestyle matters. Admitedly there finantial and other lifestyle matters which apear before the guardianship boards as well but there training in medical matters is second to no other court in australia. The state surpreme court in SA can hear some medical cases but in victoria especially these are ALL matters of the guardianship board.
There is one argument against the high court i disagree with though, that is in regard to "parental rights". Parents only have the right to act as the state demands and the state stipulates that only medically nessary treatments can be authorised by parents. Of course they dont have a right to refuse these treatments under the doctroin of medical nessacity but they do have a right to "authorise" them in the first instance. All non medically nessary treatments are the responcability of the state to determine. This can be evidenced by the fact that no one has a right to demand treatment against medical advice, only to refuse it.
There is one further reason for the state boards to have full jurstiction rather than the family court. That is that the people who apear in these cases will most likly fall under there juristiction anyway. For instance what about an a 17 year old person, if there parents make an aplication just before they turn 18 and the decision takes that long to be made then it has to start all over again in the state guardianship tribunal because all mentally incapaciated persons over 18 fall under there power. This is most interesting because in SA (and every state that i have herd about) medical maturity is automatically confered as soon as a person turns 16. There for we have two different courts arguing that they should have origional juristiction on the basis of age of consent being different for legal matters compared to medical treatment.