The law of consent relevant to ‘special medical procedures’, which stems from the decision of the High Court
of Australia in Secretary, Department of Health and Community Services (NT) v JWB and SMB (Marion’s
Case), 1 is no longer fit for purpose. As noted by Professor Cameron Stewart when commenting in relation to
the case law following Marion’s Case:
After Marion’s Case, cases began to emerge which showed that decisions as to whether court authorisation was
mandatory had more to do with a general feeling of judicial unease, rather than a rational employment of the
therapeutic/non-therapeutic distinction. A pattern of contradictory cases has emerged.

… Marion’s Case has been a disaster. It laid down a test which provided no judicial certainty and it has led to
the current post-Jamie situation where the court’s role is actively causing harm to children. In the absence of
any push for legislative reform, the High Court urgently needs to rebuild the law of consent for children.

2 Critically analyse the view that the law in the field of special medical procedures is no longer fit for purpose. Ensure that you appropriately consider recent case law relevant to the field of ‘special medical procedures’ more generally (rather than focus solely on one category of special medical procedure).
[40 marks]

Health Care Law