Application by a hospital

[2025] QSC 175

QUEENSLAND COURTS AND TRIBUNALS

TRANSCRIPT OF PROCEEDINGS

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SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MUIR J

IN THE MATTER OF AN APPLICATION
BY A HOSPITAL

BRISBANE

12.26 PM, MONDAY, 16 JUNE 2025

DAY 1

ORDER

Any rulings in this transcript may be extracted and revised by the presiding Judge.

WARNING:  The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence.  This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories.  You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

HER HONOUR:   The applicant operates the [Redacted] Hospital (the Hospital), and its staff have been asked to perform a surgical termination on the pregnancy of the respondent, who, for confidential reasons, I am going to refer to as E. E is 12 years old, and a female child, who is currently about nine weeks’ pregnant to her boyfriend, who is 13. E wants to terminate her pregnancy, and appears by her litigation guardian (her mother) who is supportive of the termination. Under our law, a parent cannot consent to the termination on behalf of E.

The pregnancy itself is a result of consensual intercourse between E and her 13-year-old boyfriend, who is aware of the pregnancy, and of the desire for the termination. The hospital seeks orders from the court in its parens patriae jurisdiction to authorise the termination. These orders were sought because hospital staff are concerned that E lacks capacity to consent to the termination herself. All of the hospital staff agree, and I accept that the termination is in E’s best interests.

E’s mother believes that E does have capacity to consent to the termination. E’s father has not been notified due to concerns that he may become violent towards E. At the same time of the termination, E and her mother intend that an Implanon be inserted. If the surgical termination is to occur, it needs to do so soon.

E is starting to experience the symptoms of pregnancy, and is missing out on school.  She wants to obtain the termination before she begins to show signs of pregnancy, so that her father and her sister are not alerted to her pregnancy. Dr [Redacted] (the proceduralist) opines that the termination should occur before 12 weeks, as this will pose the lowest risk to E. E will be 12 weeks pregnant around 7 July 2025. The risk of the procedure is the ordinary risk associated with general anaesthetic, along with bleeding and infection. However, it is not expected that these risks will be significant for E.

The real question for this court is whether E has reached a sufficient understanding and intelligence to enable her to understand fully what is proposed. This test is commonly known as the Gillick test, with reference to an English case of Gillick v West Norfolk Area Health Authority [1986] AC 112. This test was adopted into Australian law in what is referred as Marion’s case, see Secretary of Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218.

Historically, children have had no capacity at all to consent or refuse treatment. This was always within their parents’ remit. Now the law recognises that there are certain developmental stages relevant to a young person’s ability to consent to medical care.  The first is young children who are unable to consent. The second is young people under 16 who are Gillick competent, and therefore able to consent. The third is young people who are between 16 and 18 who are presumed competent to consent as adults.

As Deane J relevantly observed in Marion’s case at 290, “[t]he age at which a person becomes an ‘adult’ in this country is universally fixed by legislation as eighteen. That does not mean that a person lacks all legal capacity until she or he reaches that age, or that the views of even a young child will ever be completely irrelevant. The common law has long recognised that the transition from the completely legal disability of the newly-born baby to the full capacity of the mentally competent adult is, in many respects, a gradual one.”

In Gillick, it was stated at 169 that “[p]rovided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises.” In Australia, in Marion’s case, the High Court recognised that a minor is, according to the Gillick principle, capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.

This question is one of fact. It depends on the rate of development of each individual. As a matter of principle, this court can be satisfied that E could give consent to the termination if satisfied, on balance, as a matter of fact, that she possesses sufficient understanding and intelligence to enable her to fully understand what is proposed.

E reports learning of her pregnancy after missing a period and obtaining a pregnancy test, which was positive. Her immediate desire, and one that she has readily maintained, was to terminate the pregnancy, and she attempted to do this with an abortion tablet from a pharmacy. In terms of her father, E says she is fearful he will “lose it” if he finds out she is pregnant, and her mother shares that concern.

E has been previously diagnosed with ADHD, but there is no evidence that this has any impact on her ability to consent to the treatment. It was uncontroversial before me that there are no intellectual learning difficulties faced by E relevant to her ability to consent, although she does seem to have been engaging in some immature behaviour recently, having been suspended from school for riding an e-bike through the grounds, and swearing at a teacher. But her mother describes E as a bright and intelligent young individual with a promising future ahead of her. This is consistent with how E presented before me today, expressing a desire to move forward with her life and to focus on her education.

I expect that the experience of having to come to court has also been an opportunity for E to really reflect on her life moving forward. On the material and evidence before me, E clearly has a close relationship with her mother, and trusts her grandmother, allowing her to attend one of the meetings with hospital staff. She is able to speak openly to them about being pregnant, how she is feeling, and also what she understands about her options with the pregnancy, her choices, the consequences of termination and the risks associated with having a surgical intervention, which is the one that is proposed.

E has seen an obstetrician nurse and psychologist. It is readily apparent that the Hospital has excellent facilities and support systems in place to support young people such as E, and from all the material I have been able to assess, everyone is, rightly, concerned about acting in E’s best interests. E gave evidence before me, and did very well in answering my questions, which I know and accept would have been hard with others listening in. Although court was closed and these proceedings, ultimately, will be supressed, it is a daunting thing for adults to come to court and give evidence, let alone for a child to do so.

I am satisfied that E did this bravely, and I found, as the clinicians have all said, that E behaved consistently with how one would expect, as a matter of common experience, of someone who is 12 and a-half years old. Critically, E was able to explain to me what she understood she was doing by choosing to terminate the baby, and also that there were risks with this procedure, including bleeding, risks for future pregnancy, cramping and infection. E could not recall the risk of having the needle that put her to sleep, but this is not surprising, in my view, because as the evidence transpired, this was not explained to her in any great detail.

Ms [Redacted] (the psychologist) assessed E on 2 June 2025. The psychologist was satisfied that E was clear that she wanted a termination, and that she knew that having a baby would impact her life. According to the psychologist, E was able to articulate that the termination would end the pregnancy and she could recall some of the risks associated with the procedure. The psychologist’s concern was that E did not have a comprehensive understanding of the complexities of the pregnancy and the termination, and that she required additional support to make that decision. It was not entirely clear on the questioning of the psychologist today what such a comprehensive understanding would entail. But it does not matter, in my view, as what I need to be satisfied of is that E has sufficient understanding to enable her to understand fully what is proposed.

The proceduralist, who is an obstetrician and gynaecologist, met with E on two occasions, including on one occasion, at least, with the midwife. The proceduralist considered that E had a rudimentary view of what it meant to terminate a pregnancy, consistent with that of a 12-year-old. One of her concerns seemed to be that E was using language such as “an abortion” rather than “the surgical termination of a pregnancy”. But in my view, it would be surprising for any young person, or even an adult to that matter, to use such technical terms. One does not have to use the correct medical or legal terms that doctors, nurses and psychologists use to fully understand what is being proposed.

The proceduralist was also concerned that E was unable to explain the risks of medical versus a surgical termination back to the proceduralist, it seems, a week or so after they had been explained to her. But before me, the proceduralist accepted, assuming that E could tell the court of the risks, that those were the risks that the proceduralist considered were the main risks that she wanted E to understand.

Ms [Redacted] (the midwife) gave evidence that E required assistance to understand some of the questions put to her about the termination, and that she was unable to have a detailed conversation with E. The midwife was left with the opinion that E did not demonstrate sufficient insight into the operation’s risks and benefits. But this evidence needs to be seen, now, in light of the evidence that E gave before me, where she clearly articulated the risks associated with the surgical intervention.

E is well supported by her mother and, it seems, her maternal grandmother. E’s mother believes that E shows maturity beyond her years, and that she was very aware of her body and how it functions. To some extent, that mature behaviour is supported by the report from the midwife and, indeed, of the psychologist, who notes in the progress notes that “E was able to express herself throughout the psychological assessment, and demonstrated reasonable comprehension and consideration of the impact of the pregnancy on her mental state.” It is relevant, too, that E has had her period since she was nine, so that, too, is consistent with it being reasonable to assume that, consistent with her mother’s view, E is aware of her body and how it functions.

This application really seemed to distil down to the concern of the hospital staff about E’s understanding of the risks associated with this surgery, and that, I accept, is an understandable concern. But having now heard from E in court, I am satisfied that she does sufficiently understand not only what is proposed, that is the surgical termination, but also the risks of having that termination, particularly the risks such as the bleeding and the consequences for further pregnancy, although, again, I note that the proceduralist assesses those risks as not being significant in this case.

It is well established that this court has a parens patriae jurisdiction to protect people and the property of children. This is a wide power, and that jurisdiction is to always act within the best interests of the child. Ultimately, though, in this case, it is unnecessary to address any further that jurisdiction, because I am satisfied that the child in this case, E, is Gillick competent. That is, she is competent to consent to undergo the termination of her pregnancy, and she may give valid and lawful consent for such treatment. I am prepared to make a declaration in those terms.

Counsel for the hospital raised, quite properly, whether I need to have regard to the Human Rights Act 2019 (Qld). Given that the task for this court remains to make a decision in E’s best interests, it is not necessary to decide whether the Human Rights Act changes anything. The primary consideration in this case is whether E is Gillick competent, so it is unnecessary to say anything further about that issue.

In terms of the suppression orders sought, those orders ought to be made, and it is in the best interests of the child for those orders to be made. Those orders will be that the child, E, is referenced by the letter E, and her identity is to be suppressed.

The names of family members, or any other fact or matter that may identify E, must not be published in any way. Only anonymised reasons for judgment and orders shall be released by the court. The file in this proceeding is not available for review by any person other than E or her lawyers, the applicant, or any amicus curiae, or their duly appointed lawyers. The submissions and affidavits will all be placed in a sealed envelope, together with this transcript and the hearing transcript. The audio recording will not be published. Obviously, there is nothing to stop the reasons being published, but they will have to just be completely anonymised, as was done with the other cases that you provided ‑ ‑ ‑

MR NATTRASS:   Quite so.

HER HONOUR:   ‑ ‑ ‑ me. In terms, then, of the order, I have made the declarations. I can make the suppression orders. The time for the service, the application and supporting documentation is abridged. Is there anything else, in terms of reasons, that I have overlooked?

MR NATTRASS:   No.  Not that I’m aware of, your Honour.

HER HONOUR:   Right.

MR NATTRASS:   Shall I amend 2(e) and provide that to you?

HER HONOUR:   Yes. And then take out paragraph 3 ‑ ‑ ‑

MR NATTRASS:   Correct.

HER HONOUR:   ‑ ‑ ‑ and so that will become 3. So then, as soon as that is done, the order will be available, and it is available for the doctors and the staff who are undertaking the termination.

MR NATTRASS:   Yes.  Thank you.

HER HONOUR:   Alright. So the orders will be made today, and I do not think there is anything further I need to address, then.

MR NATTRASS:   No.

HER HONOUR:   Thank you ‑ ‑ ‑

MR NATTRASS:   Thank you.

HER HONOUR:   ‑ ‑ ‑ for your submissions. Thank you all for coming to court to assist me today to make this decision, and court will be adjourned.

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