Sterilisation of minors: potential liability of doctors

The High Court of Australia ruled in 1992 that it is unlawful for a doctor to perform a nontherapeutic sterilisation procedure on an intellectually disabled minor without first obtaining authorisation from a court or guardianship tribunal, as well as from the patient’s parent(s) (Marion’s case). This was reinforced by an amendment to the Medicare Benefits Schedule in 1998, stating that sterilisation without court or tribunal authority is unlawful if it is not ‘a byproduct of surgery appropriately carried out to treat malfunction or disease’.

Since 1992, the number of sterilisations performed each year in Australia has declined significantly. However, some sterilisations are apparently still being performed without court or tribunal authorisation. Are these doctors exposing themselves to potential legal liability?