New South Wales Consolidated Acts

CHILDREN (CARE AND PROTECTION) ACT 1987 - SECT 21

21 Special medical examinations

(1) This section applies to:

(a) a child who resides in a facility, otherwise than as a member of the household of any other person who resides there, and

(b) a child who resides in a licensed residential child care centre, otherwise than as a member of the household of any other person who resides there.

(2) A special medical examination of a child to whom this section applies shall not be carried out:

(a) in the case of a child who is under the age of 16 years-unless the Minister has informed such of the parents of the child as can reasonably be located of the rights of a parent under this section, and

(b) in the case of a child who is of or above the age of 14 years-unless the Minister has informed the child of the rights of a child under this section.

(3) If a medical practitioner has advised the Minister that the medical practitioner considers that it is medically necessary to carry out a special medical examination of a child to whom this section applies, a second independent medical opinion as to whether the examination is medically necessary shall be obtained on the request of:

(a) in the case of a child who is under the age of 14 years-a parent of the child,

(b) in the case of a child who is 14 or 15 years of age-either a parent of the child or the child, or

(c) in the case of a child who is of or above the age of 16 years-the child.

(4) A special medical examination of a child to whom this section applies shall not be carried out:

(a) unless the Minister (after considering the advice of the medical practitioner referred to in subsection (3) and, if a second independent medical opinion was obtained under that subsection, that second opinion) is satisfied that the examination is medically necessary, and

(b) unless:

(i) in the case of a child who is under the age of 14 years-a parent of the child has consented in writing to the examination being carried out,

(ii) in the case of a child who is 14 or 15 years of age-both a parent of the child and the child have consented in writing to the examination being carried out,

(iii) in the case of a child who is of or above the age of 16 years-the child has consented in writing to the examination being carried out, or

(iv) the Children’s Court has, under subsection (6), ordered that the examination be carried out.

(5) A consent is void if:

(a) subsection (2) has not been complied with in relation to the child or parent by whom the consent was given, or

(b) the child has not been counselled as referred to in subsection (8).

(6) The Children’s Court, on the application of the Minister, and on being satisfied that:

(a) consent to a special medical examination is unreasonably refused, or

(b) it is impracticable for any reason (including the need for a special medical examination to be carried out as soon as practicable, whether because of the medical condition of the child or otherwise) to obtain consent to a special medical examination, or

(c) it is more probable than not that the child has been sexually assaulted by a parent whose consent to a special medical examination would otherwise be required to be sought,

may order that the examination be carried out without the necessity for any such consent.

(7) If the Minister is satisfied that it is medically necessary to carry out a special medical examination of a child to whom this section applies and the consent or consents referred to in subsection (4) has or have been obtained or the Children’s Court has, under subsection (6), ordered that the examination be carried out:

(a) in the case of a child who is under the age of 14 years-a parent of the child,

(b) in the case of a child who is 14 or 15 years of age-either a parent of the child or the child, or

(c) in the case of a child who is of or above the age of 16 years-the child,

may nominate a medical practitioner to carry out the examination or may state a preference as to whether the examination shall be carried out by a male or female medical practitioner.

(8) Before a special medical examination of a child to whom this section applies is carried out, the child shall be counselled in relation to:

(a) the nature of the examination and its effects, and

(b) such other matters as may be prescribed by the regulations,

by a suitable person other than the medical practitioner who is to carry out the examination.

(9) A special medical examination of a child to whom this section applies shall not be carried out otherwise than:

(a) by the medical practitioner nominated under subsection (7),

(b) if no medical practitioner has been so nominated but a preference has been stated under subsection (7)-by a medical practitioner nominated by the Minister in accordance with the preference so stated,

(c) if no medical practitioner has been so nominated and a preference has not been so stated-by a medical practitioner nominated by the Minister, or

(d) if the Minister is of the opinion that it is impracticable for the examination to be carried out by the medical practitioner so nominated or in accordance with the preference so stated-by a medical practitioner nominated by the Minister.

(10) If a special medical examination of a child to whom this section applies is carried out:

(a) pursuant to a consent referred to in subsection (4) (b) given by a parent of the child, or

(b) pursuant to an order of the Children’s Court under subsection (6),

and the special medical examination is carried out in accordance with the provisions of this section, it shall be deemed, for the purposes of section 49 of the Minors (Property and Contracts) Act 1970 , that a parent or guardian of the person of the child consented to the examination being carried out.

(10A) Nothing in this section requires:

(a) any consent to a special medical examination to be obtained, or

(b) any nomination or preference referred to in subsection (7) to be sought,

from a parent against whom criminal proceedings have been commenced but not concluded, or a parent who has been found guilty of an offence, in relation to an alleged sexual assault on the child.

(11) The provisions of Division 3 of Part 5 apply to and in respect of the hearing of an application under subsection (6) in the same way as they apply to and in respect of the hearing of a care application under that Division.

(12) In this section:
"parent", in relation to a child to whom this section applies, includes the person in whose care the child was immediately before the child became a child to whom this section applies.
"special medical examination" means:

(a) a vaginal or anal examination (including any examination involving the insertion of any thing into the vagina or anus), or

(b) a penile examination involving the insertion of any thing into the penis,

and includes any such examination carried out in the course of a medical examination under section 23.