ICU and You · Medicolegal · Number 1
Who consents, what the law asks when you are worried, and the things that turn a clinical problem into a career problem
This is not legal advice, and it is not a substitute for your own hospital's policy. It is a trainee's orientation to a domain nobody teaches until you are already standing in it.
It uses New South Wales as the worked example because that is where I practise. The principles travel; the section numbers, the thresholds and the phone numbers do not. If you trained in another state, assume you are wrong about several things until you check — there is a box at the end listing the ones most likely to catch you. If you are reading this outside Australia, the shape of the obligations will be familiar and almost none of the machinery will be: read it for the questions to ask about your own system, not for the answers.
Everything below was current in September 2026. Several of the governing documents are past their review dates and two significant things changed in 2024 and 2025. Check the source, not a saved copy. And when something real happens: ring your medical defence organisation before you do anything else. That is not a formality. It is the single most useful sentence in this article.
Almost everything that goes badly wrong for a doctor in this domain goes wrong in the first hour, quietly, while everyone is concentrating on something else. A photograph taken on the wrong device. A question asked with the best of intentions. A line removed from a child who has just died. A record amended two days later to make it clearer.
None of those are clinical errors. All of them are avoidable by knowing one fact in advance.
A NSW Working With Children Check applies to child-related work, which is a three-part test: the work provides services to under-18s in a listed sector, it normally involves being face to face with children, and that contact is more than incidental. All three must be met, and it is the organisation that determines who is in child-related work.
Which produces a question trainees actually ask: I work in a mixed adult and paediatric ICU — do I need one?
There is a statutory exemption for a private-practice practitioner treating children with another adult present. It does not help you in a salaried hospital role. And NSW Health policy applies the requirement to all paid and unpaid workers including staff on rotation, agency staff and students on clinical placement.
So the legal answer is “it depends” and the employment answer is “yes”. The employment answer is the one that determines whether you can start your rotation.
An interim bar can be imposed during a risk assessment, before any finding. It arrives without warning and, on receiving it, you must immediately stop working in child-related employment. Internal review cannot be sought for six months.
It is not a finding of guilt. It is nonetheless career-stopping on the day it arrives. If one arrives: stop, notify your Director of Medical Services the same day, and ring your MDO and an employment lawyer.
Changes in September 2025 removed the right to seek review of these decisions at the NSW Civil and Administrative Tribunal. Review is now internal to the Office of the Children's Guardian, within 28 days, with a fee. Any material telling you to appeal to that tribunal is out of date.
For the age group this piece is about, the answer is almost always the parent. But the detail around that answer is where people come unstuck.
The Minors (Property and Contracts) Act provision people cite gives you a defence, not a right. It protects a practitioner against a claim in assault or battery where a minor of 14 or above consented, or where a parent of a child under 16 consented. It does not give a 14-year-old a right to consent, it does not resolve a conflict between child and parent, it is no defence to negligence — and it offers nothing at all below 14. For a school-age child you are relying on common law with no statutory safety net.
The presumption of equal shared parental responsibility was repealed on 6 May 2024. A great deal of hospital teaching material still recites it. The clinical bottom line is unchanged — either parent can consent absent an order — but if you cite that presumption you are quoting repealed law.
When parents disagree with each other: counsel them, and if the treatment is urgent, urgency resolves it. If it is not urgent and no agreement emerges, escalate — consultant, then the district's legal unit, then, as a last resort, an application to the Supreme Court of the state — a state superior court, not the federal court that name suggests elsewhere — in its parens patriae (protective) jurisdiction. Technically one parent's consent suffices; proceeding into a known dispute without escalating is where practitioners actually get into trouble.
NSW has a specific statutory provision allowing a medical practitioner to treat a child without any consent where the practitioner is of the opinion that it is necessary as a matter of urgency to save life or prevent serious damage to health.
Three things about it worth knowing. It is a general emergency provision, not a blood transfusion section. It requires only the practitioner's opinion — there is no statutory second-opinion requirement, though obtaining and documenting one is strongly advisable. And a 2024 decision of the NSW Supreme Court confirmed it applies even where consent was sought in advance and refused, and that foreseeability does not defeat urgency.
Where treatment is certain to be needed but not yet urgent, or the matter is genuinely contentious, the court route is the right one and the district's legal unit drives it. In parallel, consider whether the refusal itself meets the threshold for a child protection report. It usually will.
This is the section to read twice.
The statutory test is reasonable grounds to suspect that a child is at risk of significant harm. Suspicion — not belief, not satisfaction, not proof. Of risk of harm, not of harm established.
There is no obligation, and no expectation, that you investigate, interview the child, or establish anything before reporting. Government guidance expressly directs staff not to conduct investigations or interviews. You are not the investigator. You are the person who noticed.
What this means at the bedside is narrower and harder than it sounds.
Child Protection Helpline — 132 111, 24 hours. Note that the governing NSW Health policy directive still prints an obsolete number; use this one.
NSW Health Child Wellbeing Unit — 1300 480 420, business hours, for NSW Health staff deciding whether the threshold is met. It is not a substitute for a Helpline report where it is.
Tertiary child protection units, 24 hours — The Children's Hospital at Westmead (02) 9845 2434, Sydney Children's Hospital Randwick (02) 9382 1412, John Hunter Children's Hospital (02) 4921 3000. Ask for the child protection consultant on call. This is the call a registrar should make at two in the morning, and almost nobody knows the numbers exist.
Three further things, in descending order of how often they are misunderstood.
The duty is personal. It attaches to the person who forms the suspicion. Telling your consultant is good practice and usually results in them or the social work team making the report — but if no report is made, your duty has not been discharged. Check that it was made, and document that you checked.
Failing to report is not itself a criminal offence in NSW — it is a professional and employment matter. But concealing a child abuse offence is a crime, carrying two or five years depending on the underlying offence. The two interlock helpfully: making the report to the Helpline is a statutory reasonable excuse for not separately going to police. That single sentence resolves most of the anxiety trainees carry about this.
The decision-support tool does not outrank your own suspicion. The Mandatory Reporter Guide is required by NSW Health policy and is not a statutory requirement. If the tool says the threshold is not met and you still hold a reasonable suspicion, the law requires you to report.
There is a specific NSW Health policy directive on imaging in suspected child abuse, and it says, in terms, that NSW Health does not support the use of personal equipment or devices — mobile phones, tablets, personal cameras, USB drives.
A registrar photographing bruises on their own phone “to show the consultant” has breached policy, created an uncontrolled copy of sensitive images of a child on a personal device, and produced material that is discoverable and effectively impossible to account for. Do not do this, and do not let your juniors do it.
Images must be captured by workers with suitable training, stored securely and separately from the health record, and retained for decades. Consent is required, for each specific purpose. Photography is genuinely urgent, because bruising evolves — which is an argument for ringing the child protection unit early, not for improvising.
A seven-year-old is brought in with a spiral fracture of the humerus. The account is that he fell from a trampoline. The registrar notices bruising of different ages over the lower back, and that the child says almost nothing. Wanting to be helpful, she takes the child aside and asks whether anybody has been hurting him. She photographs the bruises on her phone and texts them to the consultant.
Everything she did came from decent instincts. Three of them were wrong.
What was right: she noticed, and she escalated. What would have made the rest right: an open question or none, a verbatim note of anything said spontaneously along with what she had asked, a call to the tertiary child protection unit, a report to the Helpline, and photography arranged through the proper route.
A nine-year-old with a complex neurological condition dies in ICU after a long admission. The death is not unexpected. The team completes a death certificate. The nursing staff, kindly and as they have always been taught, remove the lines, wash the child and make her presentable before the family come in. A week later the unit learns that a risk-of-significant-harm report had been made about the child's older brother eighteen months earlier.
That single fact made this a coronial death. In NSW, exclusive senior coroner jurisdiction covers a child who was in care, or in respect of whom a risk report was made in the preceding three years — or who is the sibling of such a child. The treating team almost never knows this, and the child protection history is not on the front page of the chart.
So: for any child death, ask whether there is a child protection history, and ask the social work team to check, before assuming it is not coronial.
A death is reportable if it was violent or unnatural, sudden with an unknown cause, in suspicious or unusual circumstances, where the person had not been attended by a doctor in six months, where they were an involuntary patient in a mental health facility — or, the one intensive care should dwell on, where the death was not the reasonably expected outcome of a health-related procedure.
That last category is broader than people assume. The instinct that “this was a very sick child who died of their disease” is precisely the instinct that causes difficulty when an anaesthetic, a line insertion, a drug or an operation sits anywhere in the causal chain. The duty to report lies on any person with reasonable grounds to believe a death is reportable, not only the consultant. If in doubt, ring the Coroner's Court and ask. That call is free and is itself protective.
Organ and tissue donation is not precluded by coronial status, but it cannot proceed on family consent alone — the Coroner must consent. Flag coronial status to the donation team immediately, because those two conversations have to run in parallel.
One rule, and it is the rule that most often turns a defensible clinical decision into an indefensible conduct matter:
Never alter an existing entry after the fact. Electronic records keep audit trails, discovery is routine, and a retrospective amendment that is found converts a clinical question into an allegation of dishonesty. Clinical error is usually survivable. Dishonesty is not.
The correct method: to correct an error, draw a single line through it so it remains legible, mark it written in error, and sign, date and time it. To add something omitted, make an addendum that records both the time of the original event and the time you are writing. Every entry carries name, designation, date and 24-hour time.
And if a parent asks you not to document something: you cannot agree, you should say so plainly, and you should document the request — neutrally and factually. In a child protection context that request is itself clinically significant.
Two details worth carrying. Children's records in NSW are kept until the patient turns, or would have turned, 25 — or fifteen years after the last entry, whichever is longer. And the test for whether a note is well written is whether you would be content for it to be read aloud, because in a coronial or disciplinary setting it will be. Records containing editorial comment about parents are routinely the most damaging documents in a coronial brief.
New South Wales is co-regulatory, which genuinely differs from most of the country. Ahpra and the national boards register practitioners but do not manage complaints here. The Health Care Complaints Commission and the Medical Council of NSW consult each other on every complaint about a registered practitioner and agree who will manage it. A complaint may be streamed as a health, performance or conduct matter.
Two things nobody tells trainees. A complaint is not a finding, and the large majority are discontinued at assessment. And the process is slow and corrosive out of all proportion to its eventual outcome — use the MDO's support services and the doctors' health services, and tell somebody.
On notifying about others: the threshold for a treating practitioner was deliberately narrowed in 2020 to a substantial risk of harm to the public, precisely so that practitioners with health problems would seek treatment. That is a very high bar, and it is not “I am uncomfortable”. Note the word order carefully: the general threshold is a risk of substantial harm, and the treating-practitioner threshold is a substantial risk of harm. They are not the same phrase and they are easy to reverse.
One. Failing to make a mandatory report is not a criminal offence here; in the ACT, NT, SA, Tasmania, Victoria and WA it attracts a penalty.
Two. NSW captures physical, sexual and emotional abuse, neglect and exposure to domestic violence. Victoria and Queensland are limited to physical and sexual abuse; Western Australia is limited to sexual abuse alone.
Three. Complaints here are co-regulatory — Ahpra does not manage them.
Four. Working With Children Checks are not mutually recognised between states. A NSW check does not work in Queensland, and vice versa. Apply months before an interstate move.
Five. The specific statutory emergency-treatment provision for children described above is a NSW provision. Do not assume an identical section exists where you came from.
All five compare Australian states. If you trained outside Australia, assume the whole framework is differently drawn — the reporting threshold, who regulates you, what makes a death coronial and who may consent for a child are all jurisdictional, and every number above is a New South Wales number. What should travel is the habit: find out, in advance, which of these your hospital expects you to know.
One case can engage a risk-of-significant-harm report, the concealment offence, an information exchange with police, a coronial report, a reportable conduct notification and a mandatory notification about a colleague — all at once. Discharging one does not discharge the others, with the one helpful exception already noted, that the child protection report is a reasonable excuse under the concealment offence.
And the most protective thing a trainee can write is a short structured note: the concern, the grounds, who was consulted and when, the decision, and the time. In any later review the question is almost never “did you report?” It is “what did you consider, and who did you ask?”
What did nobody tell you until you needed it?
Every one of us has a moment in this domain where we discovered a rule by nearly breaking it — the form nobody mentioned, the call we did not know we could make, the thing we were about to do that somebody stopped. Those near-misses are the most useful teaching material in medicine and the least often written down.
Tell me yours. No identifying detail, and nothing you are currently involved in — the principle is what is useful, not the case. I will work the best of them into future editions, named or anonymous exactly as you prefer.
And if you are a medical administrator, a medicolegal adviser or a lawyer reading this and I have something wrong, I would be grateful rather than embarrassed. Corrections go up on the corrections page with attribution.
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