Supreme Court New South Wales

• Medium Neutral Citation: The Sydney Children's Hospital Network v X [2013] NSWSC 368
• Hearing dates: 27, 28 March 2013
• Decision date: 28 March 2013
• Jurisdiction: Equity Division - Duty List
• Before: Gzell J

Decision

Orders as per Summons.

• Catchwords: FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Parens Patriae Jurisdiction - Order sought by hospital to administer blood transfusions to a Jehovah's Witness child - whether order should be made in opposition to parents - whether child should be made a ward of court - whether Family Law Act jurisdiction applies
• Legislation Cited: Family Law Act 1975 (Cth); Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
• Cases Cited: Children Youth & Women's Health Services Inc v YJL, MHL and TL [2010] SASC 175; (2010) 107 SASR 343; Director General Department of Community Services; Re Jules [2008] NSWSC 1193; Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644; Director of Community Services - re "Matthew" [2005] NSWSC 132; Director General of the Department of Community Services v "BB" [1999] NSWSC 1169; Minister for Health v AS [2004] WASC 286; (2004) 29 WAR 517; Re Alex [2004] FamCA 297; (2004) 31 Fam LR 503; Re Bernard [2009] NSWSC 11; Re Heather [2003] NSWSC 532; Re Jessica [2001] NSWSC 1207; Re L [1999] 2 FCR 524; Re Paul [2008] NSWSC 960; Re R (a minor) (wardship consent to treatment) [1992] 2 FCR 229, [1992] Fam 11; Royal Alexandra Hospital v Joseph [2005] NSWSC 422; Royal Alexandra Hospital for Children trading as Children's Hospital at Westmead v J [2005] NSWSC 465; (2005) 33 Fam LR 448; Women's and Children's Health Network Inc v JC, JC and KC [2012] SASC 104; Women's and Children's Health Network Inc v M, CN [2013] SASC 16
• Category: Principal judgment
• Parties: The Sydney Children's Hospitals Network (Randwick and Westmead) (Plaintiff); X (First Defendant); Y (Second Defendant); Z (Third Defendant)
• Representation: Counsel: J Downing (Plaintiff); Solicitors: NSW Ministry of Health (Plaintiff); Vincent Toole Solicitor (Defendants)
• File Number(s): SC 2013/88444

EX TEMPORE Judgment

1 The first defendant is 17 years and 2 months old. He is suffering from a cancer to the nature of which and the medical treatment for which I will return.

2 The summons seeks the following orders:

"1. That until further order, the Director, Kids Cancer Centre - Sydney Children's Hospital Randwick (the Hospital) be authorised to carry out by:

(a) any qualified medical member of the staff of the Hospital; or

(b) any qualified Visiting Medical Officer at the Hospital,

the following:

(i) the administration of blood, blood products and platelet therapy and the reinfusion of the First Defendant's own blood; and

(ii) any treatment ancillary to (i),

that any qualified practitioner on the staff of the Hospital or any qualified Visiting Medical Officer at the Hospital believes at any time to be necessary to prevent serious damage to the health of the First Defendant, including the alleviation of appreciable risk of serious damage to the First Defendant's health.

2. That the Second and Third Defendants present the First Defendant to the Sydney Children's Hospital Randwick for treatment in accordance with order 1 above.

3. That each party has liberty to apply to the Court for such further or other orders as may be appropriate."

3 The structure of those orders is based upon the judgment of Santow J in Director General of the Department of Community Services v "BB" [1999] NSWSC 1169. Its formulation was followed in Royal Alexandra Hospital v Joseph [2005] NSWSC 422 and in Re Bernard [2009] NSWSC 11.

4 There is an alteration to that formulation in the inclusion in the orders sought in this case of treatment ancillary. The reason for that inclusion is the statement by the first defendant that he would resist blood transfusions, physically, by attempting to dislodge the IV needle in his arm.

5 The orders sought are based upon an invocation of the parens patriae jurisdiction of this Court. I had occasion to consider that jurisdiction in Royal Alexandra Hospital v Joseph in which I made mention of Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644, Director General of the Department of Community Services v "BB", to which I have referred, Re Jessica [2001] NSWSC 1207 and Re Heather [2003] NSWSC 532. In Re Bernard I also made reference to Director of Community Services - re "Matthew" [2005] NSWSC 132, Royal Alexandra Hospital for Children trading as Children's Hospital at Westmead v J [2005] NSWSC 465; (2005) 33 Fam LR 448, Director General Department of Community Services; Re Jules [2008] NSWSC 1193 and Re Paul [2008] NSWSC 960.

6 To those decisions can now be added Children Youth & Women's Health Services Inc v YJL, MHL and TL [2010] SASC 175; (2010) 107 SASR 343, Women's and Children's Health Network Inc v JC, JC and KC [2012] SASC 104 and Women's and Children's Health Network Inc v M, CN [2013] SASC 16.

7 In Re Jules, Justice Brereton pointed out that this Court now has a statutory regime similar to the parens patriae jurisdiction as the Court now enjoys all the jurisdiction of the Family Court of Australia as a result of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), including its power in relation to children.

8 Justice Austin in DOCS v Y [1999] NSWSC 644, had said in an obiter dictum that the whole of the parens patriae jurisdiction with respect to wardship, custody and care of children was unaffected by the Family Law Act 1975 (Cth).

9 In Re Jules, Justice Brereton was not called upon to determine whether the observation was correct because if in respect of children not already in care, the jurisdiction of the Court was affected by the referral of powers to the Commonwealth and the Commonwealth's exercise of those powers through the Family Law Act, the Court enjoyed the jurisdiction to which I have referred. Hence, either because the parens patriae jurisdiction of this Court survived unaffected by the referral of powers to the Commonwealth and Part 7 of the Family Law Act, or because this Court shares with the Family Court a statutory equivalent to the parens patriae jurisdiction, the result is the same. I am in the same position in this case and need not make a determination on the issue as I did not in Re Bernard. I adopt the reasoning of Justice Brereton in Re Jules.

10 In exercising the parens patriae jurisdiction, the court must ultimately consider the welfare and best interests of the child: Re Bernard at [17] and Re Paul at [3]; J at 456-457 [50]; Re Jules at [15]; and Minister for Health v AS [2004] WASC 286; (2004) 29 WAR 517 at 522 [19]-[21].

11 It has been held that the role of the court is to exercise an independent and objective judgment so as to balance the advantages or disadvantages of the medical step under consideration: AS at [19].

12 Whilst determining what is in the best interests of the child necessarily involves a particular focus on the individual circumstances of each case, there are a number of authorities in which courts have suggested an approach as to the matters which should be considered in determining or assessing what is in the child's, or young person's, best interests: Re Alex [2004] FamCA 297; (2004) 31 Fam LR 503 at 537-539 [201]-[213].

13 Nicholson CJ suggested that regard should be had to the following factors: the particular condition of the child who requires the procedural treatment; the nature of the procedure or the treatment proposed; the reasons for which it is proposed that the procedure or treatment be carried out; the alternative courses of treatment that are available; the desirability and effect of authorising the procedure or treatment proposed rather than the available alternatives; the physical effect on the child and the psychological and social implications for the child of (a) authorising the proposed procedure or treatment; and (b) not authorising the proposed procedure or treatment; the nature and degree of any risk to the child of (a) authorising the proposed procedural treatment; and (b) not authorising the proposed procedure or treatment; the views (if any) regarding the proposed procedure or treatment and any alternative procedure or treatment expressed by (a) the guardian of the child, (b) the person who is entitled to the custody of the child, (c) the person who is responsible for the daily care and control of the child, and (d) the child.

14 In AS, Justice Pullin, in determining an application to provide blood transfusions to a 15 year old male of Jehovah's Witness faith, who was suffering from cancer (in the face of opposition by the boy and his parents) considered factors including the nature of the disease, the nature of the treatment, the reasons for the treatment, the desirability of the treatment, the risks to the child's health with and without the proposed treatment, the faith and views of the child and his parents and the views of the attending doctors.

15 It has been held that, whilst the parents' wishes may be relevant considerations, they are not determinative. Further, in respect of older children, or young persons, sometimes described as "mature minors", it has been held that, whilst the fact of such child or young person refusing to consent to treatment is a relevant and important factor, it does not prevent the Court from authorising medical treatment where the best interests of the child or young person require it: AS at 522 [20]-[23]; J at 456-457 [50].

16 It has been further observed that the court's power in its inherent jurisdiction to countermand the wishes of the child is to be exercised sparingly and with great caution: Y at [103].

17 "X" is currently a 17 year old plus two months inpatient under the care of Professor Marshall at the Sydney Children's Hospital. His date of birth is 19 January 1996. "X" and his family are strong followers of the Jehovah's Witness faith and, as such, object to him having a blood, or platelet transfusion.

18 "X", initially, was admitted to the hospital in January 2012 and was diagnosed with Hodgkin's disease. From January 2012 to the present time, "X's" mother and father have been providing consent to his treatment. Professor Marshall is "X's" treating medical practitioner. He says that "X" had conventional chemotherapy for seven months after his initial admission. This resulted in a period of complete remission.

19 In November 2012, three months after he completed chemo-radiotherapy, "X" suffered a multifocal relapse with evidence of disease in his lungs, spleen and lymph nodes. In November 2012, Professor Marshall received a letter from "X's" parents and "X", requesting that "X" be treated with "non-blood treatment".

20 In December 2012, "X" began a further chemotherapy program. This program involved him being treated with chemotherapy, which was similar to that given at initial diagnosis.

21 Ordinarily, once relapse occurs, the Professor would treat with higher doses of different cytotoxic chemotherapy agents, with a view to again achieving a remission and overcoming the intrinsic resistance that is part of the relapse process.

22 The decision to use a lower dose chemotherapy regimen than the Professor would ordinarily use was taken by "X" and his parents to avoid the need for blood product transfusion.

23 In December 2012, the Professor recommended treatment with higher doses of different cytotoxic chemotherapy agents to "X" and his parents and said to them that, with such treatment, "X" would very likely need a transfusion of blood product at some stage. The Professor said to "X" and his parents that, normally, much higher doses of different cytotoxic chemotherapy agents are used to overcome the tumour-specific factors which have caused chemotherapy resistance and relapse. He also told them that the higher chemotherapy doses cause, as a side effect, suppression of bone marrow function and pancytopenia and the high likelihood of the need for a transfusion to compensate for that side effect. "X" and his parents refused that form of treatment.

24 "X's" complaint appears to be that the non-blood treatments started too late but, apart from that, he has total faith in Professor Marshall. Once secondary remission is achieved, relapsed Hodgkin's disease patients commonly receive autologous bone marrow transplantation and sometimes allogeneic bone marrow transplantation. Relapse within one year of initial diagnosis, as in "X's" case, is a poor prognostic indicator for ultimate cure, according to Professor Marshall. When he speaks of "cure" in "X's" case and in the case of other cancer patients, he is referring to being disease free at five years, by which time there is a very low risk of recurrence. With best available therapy, "X's" likely cure rate is approximately 40 to 50 per cent, according to current medical literature.

25 After two cycles of chemotherapy at the lower dose in the period December 2012 to early February 2013, "X's scans in early February 2013 revealed a 25 to 50 per cent reduction in the size of many tumour masses. Professor Marshall was disappointed with these results. Based on his experience in treating patients of similar age with similar disease type and stage, he would normally expect no tumour to be present after treatment with higher doses of different cytotoxic chemotherapy agents.

26 In early February 2013, "X" and his parents asked that there be a change to a different, but still lower dose, chemotherapy to try and achieve a complete remission.

27 In March of 2013, Rituxamab, an anti-CD20 antibody, was added. It has been shown to be effective in the disease, but with no effect on blood counts as a therapy. "X" has also been on erythropoietin and oral iron to boost his ability to produce red blood cells, since December 2012. He has intermittently had G-CSF to boost white blood cell numbers, since December 2012.

28 Professor Marshall is currently seeking approval from the hospital management to use a new platelet hormone, Romiplostin, to stimulate platelet production. Professor Marshall believes he has now exhausted all possible treatment (other than transfusion of blood products) that would permit them to continue to give "X" potentially life-saving anti-cancer therapy.

29 "X" was most recently admitted on 15 March 2013 for pancytopenia and fever, some two to three weeks after commencement of his third and most recent chemotherapy cycle. It is currently too early to say if "X's" third chemotherapy cycle has been successful. Professor Marshall plans to perform more scans after the fourth cycle is complete and will then have a better idea of whether "X" is responding to the chemotherapy.

30 On Sunday 17 March 2013, after three days in hospital, "X" had an haemoglobin of 35g/l. Normal range is 130 to 150g/l. He is thus severely anaemic. Anaemia of that degree is one of the expected side-effects of chemotherapy. His life is not immediately threatened and the Professor would expect that, in the normal course, "X's" haemoglobin would improve over the next few weeks as his red blood cells regenerate. The current cycle of chemotherapy has been suspended because of "X's" anaemia and the Professor's intention is to restart it almost immediately, provided "X" is also free of fever and infection and his anaemia has largely resolved.

31 Professor Marshall is concerned that when "X" begins chemotherapy again he will almost certainly become severely anaemic again. "X's" most recent severe anaemia is a very strong indicator that it will recur with further chemotherapy and, indeed, become more severe. That is Professor Marshall's experience in treating patients like "X" over many years.

32 There is an emergency plan in place, which the Professor has extensively discussed with "X" and his parents. Those discussions have occurred since "X's" most recent admission to hospital with severe anaemia on 15 March 2013. The plan entails the following: if "X's" blood pressure drops below 70 mmHg systolic, or he has a bleed with greater than 50 ml evident clinically, he will have IV albumin and normal saline immediately. Professor Marshall or his designate would come in immediately to discuss the use of blood with "X" and his parents. He has been cross-matched and, in the event of this emergency situation, the blood will be brought immediately to the ward.

33 When Professor Marshall asked "X" what he would do if they administered blood in an emergency, he said, as I have already referred to, that he would "rip the IV out". He assured the Professor he would not hurt any staff. The Professor asked him if he could be sedated while he received the blood. He responded that he felt this would be akin to being sedated and "raped".

34 On 19 March 2013, Professor Marshall received by email a document from "X's" parents in their names and in "X's" name, indicating that they each wish "X" to be treated "bloodlessly". Given "X's" current very low haemoglobin level, Professor Marshall's normal practice would be to treat him with a transfusion of packed red cells now. His view, based on over 20 years' experience in treating patients like "X" with similar disease, is that if they continue to treat his cancer with chemotherapy and he is not transfused, he will likely die of a consequence of anaemia. The alternative is that "X" will die of cancer because he is receiving less than optimal treatment for it.

35 Professor Marshall's view is that once "X" recovers to the point where they recommence chemotherapy and his haemoglobin inevitably drops, it is highly probable that he will die from the consequences of anaemia unless he receives treatment with blood products. The Professor would put that chance at approximately 80 per cent.

36 Professor Marshall believes that the prospects of "X" being cured of his relapsed cancer are approximately 40 to 50 per cent if he is able to give the best therapy. However, "X's" wish to avoid transfusion is making it extremely difficult to achieve that goal.

37 The hospital records establish two things: that Professor Marshall has co-operated with "X's" desire for non-blood treatment, and that "X's" parents support "X's" decision not to be transfused.

38 "X" was the victim of bullying at school. He spent part of Year 8 and the whole of Year 9 in home education. Then at the age of 15, "X" was granted special dispensation to commence a Certificate of General Vocational Education Course at TAFE Campbelltown College in an adult learning environment. A special dispensation was granted only after TAFE was satisfied that "X" was sufficiently mature to commence studying with adult students. "X" has now completed all of the subjects required understand the CGVE course and is awaiting receipt of his certificate. The HSC Co-ordinator at TAFE noted that "X" had a good attendance record and although 15 years old at the time, coped well in the adult learning environment. There were no disciplinary actions necessary in regard to him.

39 "X" is highly intelligent. He has researched his own condition. He said that he wants to be responsible for what went into his own body. He explored non-blood treatment on the internet. Professor Marshall described him as the leader of the team, of he and his parents. He is clearly a mature minor.

40 It was submitted that he could make an informed decision about refusing blood transfusion and Gillick competency authorities suggested that where there is an ability to make an informed decision there is no need for the parens patriae jurisdiction. In my view, it may be appropriate to suborn an informed decision of a minor if the circumstances demand such a course.

41 "X" is well supported, not only by his parents, but also by friends, almost exclusively of the Jehovah's Witness faith. He has a whiteboard in his room at the hospital, where his father put a scripture reference to abstaining from blood. It is an absolute tenet of the Jehovah's Witness faith that blood and blood products are forbidden. "Z" taught "X" morals and principles at an early age and introduced him to the scriptures. At 13, "X" asked the elders of his church if he could preach. Thus there is no doubting "X's" devotion to his faith, but his life has been cocooned in that faith.

42 There are some similarities of "X's" situation with Re L [1999] 2 FCR 524, although his situation is not nearly as extreme. In that case, as a result of accidentally falling into a bath of very hot water, a girl aged 14 suffered very serious burns. Her condition was so grave that she needed medical treatment involving surgical intervention to save her life. The operations would require blood transfusions, which the child would not consent to, as she was a Jehovah's Witness. The surgeon made it clear to the child that the operations and blood transfusions were necessary to save her life but, because of her age, he had not told her what would be the very distressing nature of her death. The hospital authority sought the leave of the court to administer blood transfusions in the course of essential medical treatment, even though the child did not consent.

43 Sir Stephen Brown P said this:

"This matter, of course, raises problems which have been before the courts on previous occasions. The phrase 'Gillick competence' is now well-known to the courts and I have been reminded of the analysis of Lord Donaldson MR of so-called Gillick competency in the authorities Re R (a minor) (wardship consent to treatment) [1992] 2 FCR 229, [1992] Fam 11, and in particular in the passage [1992] FCR 229 at 246. In this case Dr Cameron, a well-respected consultant child psychiatrist, has given evidence on behalf of the Official Solicitor who represents the girl at this hearing. Dr Cameron has not seen the girl because of her situation and the fact that it would be quite wrong, in his view, to subject her to perhaps an hour long interview in order to make some assessment of his own, but he has seen all the papers in the case and has had a brief discussion about her condition with Mr Milling. He makes the point that the girl's view as to having no blood transfusion is based on a very sincerely, strongly held religious belief which does not, in fact, lend itself, in her mind, to discussion. It is one that has been formed by her in the context of her own family experience and the Jehovah Witness' meetings where they all support this view. He makes the point that there is a distinction between a view of this kind and the constructive formulation of an opinion which occurs with adult experience. That has not happened, of course, in the case of this young girl. Doctor Cameron would not - and I would not - question the sincerity of this girl's belief. But I do not think that it should be overlooked that she is still a child. She is 14, or just over 14. She has led what has been expressed to have been a sheltered life, not unrealistically sheltered life but nevertheless a sheltered life. Her family circle is a tight one, in one sense, although there are a number of members of the family. She is a member of the Jehovah's Witness congregation which forms a very large part of her life. I think the nursing sister told us that she had said that she had spent some 60 hours in the week before her accident dealing with matters connected with the church.

It is, therefore, a limited experience of life which she has - inevitably so - but that is in no sense a criticism of her or of her upbringing. It is indeed refreshing to hear of children being brought up with the sensible disciplines of a well conducted family. But it does necessarily limit her understanding of matters which are as grave as her own present situation. It may be that because of her belief she is willing to say, and to mean it, 'I am willing to accept death rather than to have a blood transfusion', but it is quite clear in this case that she has not been able to be given all the details which it would be right and appropriate to have in mind when making such a decision."

44 In the end, I must make a decision whether or not to overrule the decision of "X" and his parents that he not be given blood transfusions. In making that decision, the ultimate consideration is what is in the best interests of "X".

45 Apart from ripping out the IV if he can, "X" would obey a court order that he be transfused and he would co-operate. So would his father. He and his father agree that if he has blood transfusions against his will there is no ramification within his church. His relationship with his God will change, as he has taken blood.

46 It was submitted that should I decide that "X" should be transfused, the words "as a last resort" be added to the order in paragraph 1 of the summons, after the words, "the following". That would delay the exercise of the order and defeat the purpose of an orderly approach to "X's" treatment.

47 Not because "Y" and "Z" have not co-operated with hospital authorities, they have, but because the orders ought to make the parents' legal duties clear, as Justice Hamilton pointed out in Re Paul, the orders should include the requirement that they bring "X" for treatment by way of transfusion if required to do so by Professor Marshall or his substitute.

48 Notwithstanding the strong and genuine views taken by "X" and his parents in opposition to blood transfusions and notwithstanding that the effect of the orders may only extend "X's" life for 10 months when he becomes an adult and may stop the treatment, I am of the view that the orders sought should be made.

49 The sanctity of life in the end is a more powerful reason for me to make the orders than is respect for the dignity of the individual.

50 For the reasons I have given, this is not a case of Gillick competency. "X" is still a child, although a mature child of high intelligence.

51 I make the orders in exercise of the parens patriae jurisdiction of the Court.

52 The orders in the summons are made.

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Decision last updated: 17 April 2013