Doctors, Be Warned
The Convention on the Rights of the Child, Article 24, clearly condemns medical practices that are harmful to children. Amongst these, male circumcision constitutes one of the egregious examples, and the Convention clearly indicates that a harmful practice cannot be justified on tradition, religious, or ethnic grounds. What is particularly noxious about the practice is that it usually takes place without the consent of the child. Australian Law has already reached the position where it has been held that parental consent to an irreversible non-therapeutic operation is not sufficient to justify doctors in performing it. This presentation will argue that doctors have been put on notice that they are taking a huge risk in performing this operation. They are vulnerable to legal action by the child.
KeywordsIntellectual Disability Male Circumcision United Nation Convention Female Circumcision Harmful Practice
Unable to display preview. Download preview PDF.
- 1.For a general overview of the legal responsibilities of medical practitioners according to Australian law see Skene, L., Law and Medical Practice: Rights, Duties and Defences. Butterworths: Sydney; 1998.Google Scholar
- 2.Only Somalia and the United States of America have failed to ratify the Convention. It is thus the Human Rights document that has obtained the most widespread ratification in the world.Google Scholar
- 3.For an overview of the UN Convention, and its implementation in Australia, see Report of Joint Standing Committee on Treaties, UN Convention on the Rights of the Child (1998).Google Scholar
- 4.For a critical analysis of Australia’s implementation, see: J. Neville Turner, Panic Over Children’s Rights, (1996) I. Newcastle University Law Review 72.Google Scholar
- 5.Re Marion (1992) F.L.C. 92–293: appeal allowed, sub nomine Secretary, Department of Health and Community Services v. J M B and S M B (1992) 175 C.L.R. 218. For comment, see Patrick Parkinson, Children’s Rights and Doctors’ Immunities, (1992) 6 Australian Journal of Family Law 101.Google Scholar
- 6.St. Margaret’s Hospital for Women (Sydney) v. McKibbin (1987) Australian Tort Reports 80–130. See also Peterson v. Morley (1999) (unreported, District Court, W.A. Perth, N. 3713) referred to in: Boyle GJ, Svoboda JS, Price CP, Turner JN. Circumcision of healthy boys: criminal assault. Journal of Law and Medicine 2000;7:1–10. In that case, a settlement of $360,000 was approved and noted.Google Scholar
- 7.Warren JP, Smith PD, Dalton JD, Edwards GR, Foden M, Preston R, Stewart P, Roberts A, Cookson PC, Elliott J, Phillips JS, Williams J, Mallinson-Read M, Morris I, Bowring J, Warburton R, Blazeby J, Peters T, Moore J, Stevens J. Circumcision of children. BMJ 1996;312(7027):377 [10 February 1996].PubMedCrossRefGoogle Scholar
- 8.For details of these cases, see Stephanie Charlesworth, J. Neville Turner and Lynne Foreman, Disrupted Families — The Law (Federation Press, Sydney, 2000), pp 131–132. Nicholson C.J. had dissented in the court below (Full Court of the Family Court of Australia). His dissenting judgment was approved in the successful appeal to the High Court of Australia (see Note 4, supra).Google Scholar
- 9.It is, however, disturbing to find that, since 1989, the rate has not been falling, but slightly rising. See Department of Health Statistics.Google Scholar