Child and Adolescent Health Service v JK

[2021] WASC 48

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   CHILD AND ADOLESCENT HEALTH SERVICE -v- JK [2021] WASC 48

CORAM:   QUINLAN CJ

HEARD:   25 FEBRUARY 2021

DELIVERED          :   25 FEBRUARY 2021

FILE NO/S:   CIV 1100 of 2021

BETWEEN:   CHILD AND ADOLESCENT HEALTH SERVICE

Applicant

AND

JK

First Respondent

MK

Second Respondent

Catchwords:

Children – Medical treatment – parens patriae jurisdiction – ipsum bonum amici curiae

Legislation:

Nil

Result:

Application adjourned sine die

Category:    B

Representation:

Counsel:

Applicant	:	Ms C J Thatcher SC with Ms G M Mullins
First Respondent	:	Ms R L Cohen as amicus curiae
Second Respondent	:	Ms K M Russell

Solicitors:

Applicant	:	State Solicitor's Office
First Respondent	:	Legal Aid WA
Second Respondent	:	Aboriginal Legal Service (WA)

QUINLAN CJ:

1. This is an application, by notice of motion dated 19 February 2021, for orders in the parens patriae jurisdiction of the Court. The applicant, the Child and Adolescent Health Service, is the health service provider of the Perth Children's Hospital.

2. The applicant sought orders in relation to the treatment of JK, an 11 year old boy, who suffers from a serious illness requiring life‑saving treatment. The treatment was supported by JK's mother (MK) but for various reasons, circumstances prevented the treatment from being administered. In the extraordinary circumstances of this case, the notice of motion sought extraordinary orders from the Court designed to ensure that JK received the treatment that he needs.

3. There could hardly be a legal proceeding more important than one whose sole purpose is to preserve the life of a child and, as the Talmud says, whosoever saves one life saves the entire world.

4. The applicant was represented by Ms Carolyn Thatcher SC, Ms Gemma Mullins and Ms Danielle Underwood. The quality of their work in preparing the application under the obvious time pressures was outstanding. The affidavit material filed in support of the notice of motion was both succinct and comprehensive, and clearly set out all of the matters necessary to determine the difficult issues involved in the application. The submissions, which were filed the working day after the application was commenced, were of equal quality.

5. As important as the proceedings are, as all counsel recognised, of equal importance was that the orders sought by the applicant would not be necessary. That was made possible, not only by the dedicated staff of the Perth Children's Hospital and other agencies, but by the direct assistance of Ms Robin Cohen and Ms Kathryn Russell, who appeared at short notice on 22 February 2021, first as amicus curiae to represent the interests of JK and MK.

6. Both Ms Cohen and Ms Russell each proved to be not only amicus curiae but ipsum bonum amicus curiae. Together with the staff from Legal Aid WA and the Aboriginal Legal Service (WA) and many others (including Senior Constable Tom Gryta), Ms Cohen and Ms Russell assisted JK and MK to achieve a favourable outcome. The Court has been advised that JK is now undergoing treatment without the need for any further order of the Court, at this time.

7. Ms Thatcher SC, Ms Mullins, Ms Underwood, Ms Cohen and Ms Russell are a credit to the legal profession.

8. The application will be adjourned sine die.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

AK

Principal Associate to the Honourable Chief Justice Quinlan

25 FEBRUARY 2021