A person with an intellectual disability has the same right as anyone else to have friendships, sexual relationships, to live with someone or to marry and have children. The only qualification of this is that which arises from any guardianship order which may be enforced in relation to the person.
If a person with an intellectual disability is over the legal age of consent they can decide to have sexual relationships. A parent cannot legally prevent a child who is over the age of consent from having sexual relationships.
Marriage and de facto relationships
Any person is free to marry provided they are old enough and they generally understand the nature and effect of the marriage ceremony. There is no legal reason why a person with an intellectual disability may not marry. They can also register a significant relationship, and qualify as being in a de facto relationship.
The Family Law Act 1975 (Cth) covers married relationships, and de facto relationships their breakdown and the welfare of the children of the marriage. There is no presumption in the law that a person with a disability is an unfit parent, although in custody matters a disabled parent will have a much better chance of success if they can show an awareness of the needs of the child, and can support the child either by themselves or with assistance from friends, family, or government agencies.
Having children can impose severe financial and emotional strain upon individuals or a relationship. Serious problems often arise for people with intellectual disabilities when they want to have children. Other people, including their parents and authorities, may think they should not have children. Contraception can be used to plan a family. The choice to use contraception and the form of contraception used, is up to the individual concerned.
Both women and men can undergo surgery for sterilisation. The operation is a more complicated one for women than for men. A person with an intellectual disability should be given the opportunity to be as fully involved in the decision-making as their circumstances permit.
Where an adult is legally incapable of making the decision, a sterilisation on non-therapeutic grounds, such as where there are problems of menstrual management or hygiene can only be performed with the approval of the Guardianship Stream of the Tasmanian Civil and Administrative Tribunal (TASCAT). This is because sterilisation falls into the category of ‘special treatment’ under the Guardianship and Administration Act 1995 in respect of which ‘persons responsible’, who can normally give substitute consent, lack capacity to give consent. Non-therapeutic grounds for sterilisation are distinct from medically indicated surgery necessitated by the presence of disease, such as cancer.
In the case of a child with a disability, authorisation must be sought from the Family Court before a non-therapeutic sterilisation may proceed as parents lack legal authority to give consent to such a substantial and irreversible procedure.
The consent of the parent(s) is normally required before the court can make an adoption order concerning the child of a person with an intellectual disability. The court will refuse to make an order where there is not proper consent. This is the case when the consent is obtained by fraud, duress or improper means, or the person giving consent did not fully understand what they were doing.
The court may dispense with consent where the parent is incapable of properly considering the question because of their mental or physical condition. The court will require extensive information on the circumstances of the child before making the order. Where adequate arrangements have been made for the child, for example where the child is being cared for by the grandparents or other people with whom the child has a good relationship, the court is unlikely to interfere.
Marion’s Case – sterilisation
In 1991, the High Court was asked to determine whether parents or courts could make a decision on the behalf of an intellectually and physically disabled child to undergo sterilisation. This was a question of the ‘best interests’ of the child. ‘Marion’ was the name given to the respondent. She suffered from mental retardation, severe deafness, epilepsy and behavioural problems. Her parents sought an order for a total hysterectomy and removal of her ovaries to prevent menstruation and pregnancy. Marion was incapable of caring for herself physically and was also incapable of understanding the meaning of sexuality, pregnancy and motherhood.
The High Court reversed a decision of the Family Court, which held that the parents could authorise the operation. The High Court said that only sterilisation as an incident of surgery were within the powers of parental consent. The decision to sterilise could not be made by the parents alone, but must be authorised by the Family Court if it was in the best interests of the child.
The Court also held that parental power to consent to medical treatment on behalf of the child decreased as the child developed the capacity and maturity to understand the nature of what was proposed. This was not fully applicable with Marion, as she was not ever going to develop the capacity or maturity to understand the nature of sexuality, pregnancy or motherhood.
The impact of this case has been that parents can not provide consent to sterilisation unless the sterilisation is a matter of last resort, which addresses the needs and capacities of the child’s life. The Family Court can authorise sterilisation, but only as a matter of necessity. Practice now points to the ready availability of other means of managing menstruation and chances of pregnancy, as invalidating arguments for the necessity of sterilisation.
Page last updated 27/02/2022