Parens Patriae and Best Interests: What's Autonomy Got to Do with It?

This article analyses Australian case law exercising the parens patriae jurisdiction. Specifically, this article considers the application of the best interests test, focusing on those cases involving non-Gillick competent children. Despite judicial hesitancy to identify relevant factors comprising the best interests expressly test, this article examines the case law to identify the key factors said to be weighed when determining best interests. Analysis of the cases reveals significant reliance on expert medical evidence in such cases. The article then considers the case law from the perspective of the four key theories of health law and posits that the current best interests test predominantly aligns with the health law principle of beneficence, which often results in the demotion of autonomy. This stands in contrast to a global paradigm shift towards greater recognition of individual autonomy. The article briefly considers alternative approaches, advocating for increased weight to be given to autonomy when determining best interests within the parens patriae jurisdiction to better reflect contemporary ethical perspectives.