Director of Community Services - re "Matthew"

[2005] NSWSC 132

CITATION:	Director of Community Services - re "Matthew" [2005] NSWSC 132
HEARING DATE(S):	7 January 2005
JUDGMENT DATE :	7 January 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	(1) The notice of motion filed in court today is returnable instanter and heard in the absence of the second defendant; (2) Summons and supporting affidavits used in the present application to be served on the second defendant by 14 January 2005; (3) No publication that would identify or tend to identify the child, the subject of these proceedings, or his family occur, except for the proper conduct of the proceedings; (4) Confirm earlier order that the proceedings be heard in closed court; (5) The proceedings be known as "Re Matthew" (not the name of the child), and that the child the subject of the proceedings, be named as "Matthew"; (6) The child to be separately represented (and it is requested that the Legal Aid Commission of New South Wales arrange such representation); (7) The treatment specified in prayer 7 in the notice of motion be authorized; (8) The plaintiff use its good offices to ensure that copies of medical records relating to Matthew be made available to such legal representatives and medical practitioners as may be nominated by the defendants; (9) That the orders made in the proceedings today be entered forthwith; (10) The parties have liberty to apply to the Court at any time in respect to these orders.

CATCHWORDS:	Application by DOCS for orders permitting medical treatment - child born with significant brain damage - not consented by parents - role of Court - orders made
PARTIES:	Director of Community Services (Plaintiff) v The Defendant
FILE NUMBER(S):	SC 1025/05
COUNSEL:	Mr P Singleton (Plaintiff) Defendant in person
SOLICITORS:	I V Knight (Crown) Defendant unrepresented

LOWER COURT JURISDICTION:

Revised

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

ADAMS J

FRIDAY 7 JANUARY 2005

1025/05 - DIRECTOR GENERAL OF COMMUNITY SERVICES – re “MATTHEW”

JUDGMENT

1 HIS HONOUR: This is an application by the Director General of the Department of Community Services for orders which will have the effect of permitting doctors having the medical care of a very young child, who was born on 2 December 2004, to provide treatment designed to prevent a worsening of certain conditions with which he was born.

2 This is a very difficult case since the primary problem faced by the child may be described as, in lay terms, significant brain dysfunction. The diagnoses are as follows –

(1) Prematurity (35 weeks gestation)
(2) Intra uterine growth retardation
(3) Ventriculomegaly (hydrocephalus) with in utero intraventricular haemorrhage
(4) Thrombocytopenia secondary to PLA3 alloimmunization.

3 In lay terms he suffered bleeding within the brain before birth and continues to suffer from water on the brain. Of immediate importance is the condition of thrombocytopenia, or lack of thrombocytes, also known as platelets. These are important components of blood that reduce bleeding and haemorrhage and the risk of bleeding and haemorrhage. The thrombocytopenia suffered by the child arose from a process in which in utero antibodies in the mother's blood attack the child's platelets because she and the child have different blood groups. Whatever the explanation, the child needs infusions of platelets, by way of blood transfusion, in order to keep them at an appropriate high level.

4 There can be no doubt that, even with optimum treatment, the child's condition is serious and his prospects for full and happy life must be regarded as questionable. It is probable that he will suffer at least some degree of disability. It cannot now be assessed. It may be mild, but it may well be severe or profound.

5 The child's parents, who have been placed by this situation in a very difficult position with which it is impossible not to sympathize, feel that it is in their child's best interests that there be no intervention as proposed and that (I would say nature but) they say God's will should be allowed to have its way. The child’s father has addressed the Court and said –

“I must say that no one loves our son more than we do.”
“That is the first child. To our understanding and our belief, we have got a big problem. We have a big problem because this problem, it didn't happen after birth, it happened a long time before birth, at least three months. So there is brain damage. The optical nerve had been affected. His motor functions, such as walking, had been affected and no one knows what it is. So I wouldn't like to see him live and suffer, suffering to live in this sort of disability, suffering. He can't walk and he can't talk and he can't see in all his life, suffering. He doesn't have to be in pain and suffer.
To me before him and after him I have nothing. Before him I had nothing and after him I am going to have nothing. It's all in God's hand, so we rather see him rest in peace instead of, you know, going through all this, suddenly go down, blood transfusion because it's just, you see difficult for me. I am not a doctor. I am not a medical man, but I have seen this with my eyes the results and x-rays. He looks very bad. He doesn't look normal to us.
So when it comes to brain - if it's heart, kidney, any organ, that's fine, I am happy to do anything, but when it comes to brain, there are hundreds of millions of cells that had been damaged. I don't think there is going to be science, no matter what you can do, I don't think we can revive these cells. The damage is in the brain and the damage has been done. So what can we do now? According to what they say, to stop more damage. They said to me on many occasions that if they did not do this more damage will happen.
In the meantime one Polish doctor, Dr Colin - I am not sure about his second or third name - has said that his count, his blood count, red cells are so low that it was 15,000 when he was born, if they did not do blood transfusion or blood test transfusion it would keep on going down and down until it reaches below 5, in this case he will die because it would affect his heart and functions of the body because his heart will stop, his kidney will stop.
It's not we are now asking for diminishing rescue, but we are asking that he goes in peace. That's our object when he was first born on 2 December last year. That is for his own sake, not for our sake as parents, or not the Government's sake as part of the Government's responsibilities for the community. It's only for his own sake that this boy will suffer. If he can't talk and walk, how can we feed him, and how can he go to the toilet if he can't see, you know. You do not know what is going on. That is our view about it. There is nothing more than love.”
“I must tell your Honour that the things that I would like to say. To my belief, and my belief as a parent, “Mathew” has lived since he was born without these procedures which is mainly the blood transfusions. We are quite sure we didn't mean to take that from him. It may be, I apologize. It's all this stuff and issues that have been canvassed.
There is another issue. I am seeking medical records from both Nepean and Randwick Children Hospital because I am seeking independent medical advice and I would like to have a look at all the records to see what they think. It is a matter of trying to see what it is.”

6 I have no doubt that he is motivated by his love for his child and his concern lest his child suffer in the course of his life from serious disabilities which will almost certainly mean that his life will be very unhappy. No parent wants that for their child. I am mindful also that parents feel, and rightly feel, profound responsibility to take care of their children and taking care of a child with disabilities such as this one will prove a heavy, long-standing and sad burden. The father has said that neither he nor his wife has placed this consideration in the scales and I believe what he says to be true, however it is one of the inevitable and human consequences of the success with which science has maintained and improved health that situations of this kind, which present very difficult decisions for determination, arise.

7 The present application is made for the purpose of allowing immediate or relatively immediate treatment which is necessary, not to preserve the child's life which, according to the medical opinion that has been tendered to the Court, is not at risk but rather to ensure that the disabilities which the child may suffer will be reduced as much as possible. Understood in this way, I do not see how it would be possible to conclude, with the Court's objective eye, that the interests of the child could lie other than to permit the proposed treatment to be undertaken. However, the position is not stable and although I propose to make the orders they will only apply until further order.

8 I propose to have this matter listed in this court at the commencement of term, I think that is 31 January, for further medical reports with a view to considering whether or not the order permitting the treatment described should be continued. Because of the changing medical situation I do not think it is appropriate to impose an automatic termination of the order for treatment.

9 Accordingly, I make the following orders –

(1) The notice of motion filed in court today is returnable instanter and heard in the absence of the second defendant.
(2) The summons and supporting affidavits used in the present application must be served on the second defendant by 14 January 2005.
(3) That no publication that would identify or tend to identify the child, the subject of these proceedings, or his family occur, except for the proper conduct of the proceedings.
(4) I confirm my earlier order that the proceedings be heard in closed court.
(5) That the proceedings be known as "Re Matthew" (not the name of the child), and that the name of the child, the subject of the proceedings, be named as Matthew".
(6) That the child be separately represented (and it is requested that the Legal Aid Commission of New South Wales arrange such representation).
(7) That the treatment specified in prayer 7 in the notice of motion be authorized.
(8) That the plaintiff use its good offices to ensure that copies of medical records relating to Matthew be made available to such legal representatives and medical practitioners as may be nominated by the defendants.
(9) That the orders made in the proceedings today be entered forthwith.
(10) The parties have liberty to apply to the Court at any time in respect to these orders.

**********