Fletcher (an infant by her litigation guardian Rylands) v Northern Territory of Australia - [2017] NTSC 62

CITATION:Fletcher (an infant by her litigation guardian Rylands) v Northern Territory of Australia [2017] NTSC 62
PARTIES:FLETCHER (AN INFANT BY HER LITIGATION GUARDIAN RYLANDS)

v
NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:No 7 of 2016 (21649341)
DELIVERED ON:  15 August 2017
DELIVERED AT:  Darwin
HEARING DATE:  16 November 2016
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – LEGAL PROCEEDINGS – OTHER MATTERS
Application for orders authorising and directing the defendant to feed the plaintiff nasogastrically by force and against her will if necessary – a Gillick competent minor will ordinarily have the capacity to refuse medical treatment – the infant was not a Gillick competent minor with the capacity to refuse this particular form of medical treatment – in circumstances where a minor lacks the requisite capacity consent to medical treatment consent will ordinarily be provided by the child’s parents or legal guardian – the court’s authorisation will be required for non-therapeutic procedures which carry a significant risk of making a wrong decision where the consequences of doing so would be particularly grave – involuntary nasogastric feeding in these circumstances is therapeutic in nature with no need for an order authorising that treatment – order only required by reason of the defendant’s refusal to implement the treatment as recommended by eating disorder specialists – even if the infant had been a Gillick competent child an order authorising involuntary nasogastric feeding would have been justified – orders made authorising and directing the defendant not to unreasonably refuse nasogastric feeding.
Emergency Operations Act (NT) s 3
Supreme Court Rules (NT) r 59.06(1)

Director-General, New South Wales Department of Community Servicesv Y [1999] NSWSC 644, Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, Re GWW and CMW (1997) 21 Fam LR 612, Minister for Health v AS (2004) 29 WAR 517, Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549, Melo v Superintendent of Royal Darwin Hospital (2007) 21 NTLR 197, Re Alex (Hormonal Treatment for Gender Identity Dysphoria) (2004) 31 Fam LR 503, Re C (Adult: Refusal of Medical Treatment) [1994] 2 FCR 151, Re Jane (1988) 94 FLR 1, Re M (Child: Refusal of Medical Treatment) [2000] 52 BMLR 124, Re R (A Minor) (Wardship: Consent to Treatment) [1991] 3 WLR 592, Re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1992] 4 All ER 627, Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218, X v Sydney Children's Hospital Network (2013) 85 NSWLR 294, referred to.

P Trowse, "Refusal of Medical Treatment – A Child's Prerogative" (2010) Vol 10 No 2 (QUTLJJ).
REPRESENTATION:
Counsel:
Plaintiff:A Wyvill SC
Defendant:T Anderson
Solicitors:
Plaintiff:Povey Stirk
Defendant:Solicitor for the Northern Territory
Judgment category classification:    B
Judgment ID Number:  GRA1709
Number of pages:  18

IN THE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Fletcher (an infant by her litigation guardian Rylands) v Northern Territory of Australia [2017] NTSC 62
Case: [2017] NTSC 62
Decision Date: 15 August 2017

CaseChat Overview and Summary

In this case, the plaintiff, an infant represented by her litigation guardian, brought an application against the Northern Territory of Australia for orders authorising and directing the defendant to feed the plaintiff nasogastrically by force against her will if necessary. The infant, who had been diagnosed with anorexia nervosa, had been receiving treatment including nasogastric feeding, but had stopped eating again upon her return to the Northern Territory. The court had to decide whether involuntary nasogastric feeding could be ordered and whether such treatment required the court's authorisation.

The primary legal issue was whether the court could order involuntary nasogastric feeding against the infant's will, given her status as a Gillick competent minor. The court had to consider whether the infant had the capacity to refuse this particular form of medical treatment and whether the involuntary nasogastric feeding was therapeutic in nature. The court also needed to determine if the defendant's refusal to implement the treatment as recommended by the eating disorder specialists warranted court intervention.

The court held that the infant, while Gillick competent, lacked the capacity to refuse this particular form of medical treatment given her severe anorexia nervosa. The court emphasised that involuntary nasogastric feeding was therapeutic in nature and did not require court authorisation for such treatment. However, the court found that the defendant's refusal to implement the recommended treatment justified the court's intervention. The court made orders authorising and directing the defendant not to unreasonably refuse nasogastric feeding, as recommended by the eating disorder specialists. The court underscored that even if the infant had been a Gillick competent child, an order authorising involuntary nasogastric feeding would have been justified in these circumstances.

Orders

Orders of the court

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Background

Background to the litigation

Having regard to the provision, the parties were required to attend for hearing on 16 November 2016. The plaintiff filed written submissions in advance of the hearing. Following consideration of the plaintiff’s affidavit material and those submissions, the court gave judgment in terms consistent with the terms extracted above, and advised that it would publish reasons at a later date. These are those reasons.The facts The facts may be briefly stated in a manner which does not undermine the purpose of the pseudonym orders. The infant had just turned 16 at the time the application was made. She had started exhibiting anorexic behaviours in mid-2015. She was formally diagnosed with anorexia nervosa in February 2016. By March 2016 the infant’s weight had dropped to 43 kilograms and she was admitted to the Flinders Medical Centre. Her treatment plan in that institution reflected current international practice and placed emphasis on rapid weight restoration to reverse brain damage associated with malnutrition, to restore mental capacity, and to facilitate early recovery. The plan included nasogastric feeding to assist with weight restoration. That feeding modality was used to provide supplementary boli for any part of a meal purged or not eaten. The infant was discharged and returned to the Northern Territory after a two week program which restored her weight to almost 49 kilograms. Upon her return the infant stopped eating again and her weight dropped to 44 kilograms. She was admitted to the defendant’s hospital and accepted nasogastric feeding voluntarily. The infant was subsequently transferred back to the Flinders Medical Centre. Again, involuntary nasogastric feeding was employed if the infant failed to eat or complete a meal. That admission was of approximately three months’ duration, during which the infant reached her target weight of 55 kilograms. That was achieved through a combination of family-based therapy and medical intervention, with assistance and input from the eating disorder team at the Westmead Hospital in Sydney. The infant was then discharged and became an outpatient at the Flinders Medical Centre. The experience in the infant’s treatment was that involuntary feeding was required in particular at times of transition, including during the move to eating off the ward and the move to a flat with her family following her discharge. As part of the transition the medical centre implemented a system whereby the infant’s family could return her to the centre immediately for involuntary feeding if she refused to eat. The next step in the infant’s recovery was to facilitate her return home to the Northern Territory. At a conference involving specialists from the Flinders Medical Centre, Westmead Hospital and the defendant’s Acting Medical Director, the defendant proposed a treatment plan under which the infant would be admitted to the defendant’s hospital if she displayed signs of physiological instability, dehydration, abnormal ECG, electrolyte imbalance, or a rapid or consistent weight loss of more than one kilogram per week over several weeks. That plan contemplated involuntary nasogastric feeding only if the infant was “at acute risk of serious medical compromise or death”, in which event the hospital treating team would “consider” the provision of medical care under the Emergency Medical Operations Act (NT). Implicit in that plan was the misapprehension that the infant’s consent was legally required for nasogastric feeding in the circumstances. The plan contemplated that the infant could either accept or decline feeding, or any other form of treatment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Despite the representations and opinions of the eating disorder specialists from the Flinders Medical Centre and the Westmead Hospital, the defendant’s Acting Medical Director refused to adopt a plan which involved involuntary nasogastric feeding as an early intervention strategy. In adopting that position, the Acting Medical Director suggested that the infant was capable of making her own decisions regarding her healthcare. That asserted autonomy apparently included determining whether or not to eat despite the fact that the infant was suffering from a severe form of anorexia nervosa. It was in the face of that attitude that these proceedings were brought.Consideration As the orders sought and ultimately made contemplate the involuntary treatment of the infant, the starting point for any consideration of the issues is the common law principle that a minor with the requisite insight, maturity and competence may consent to therapeutic procedures. The common law position in England relating to a minor's competency to consent to treatment was established by the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority.[1] That case determined that minors may authorise medical treatment when they are old enough and mature enough to decide for themselves, provided they are capable of understanding what is proposed and expressing their own wishes. This concept has since commonly been referred to as that of the “Mature Minor” or “Gillick competent child”. In Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case), the High Court affirmed the operation of the Gillick principle in Australia in the following terms:[2]A minor is, according to this 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 approach, though lacking the certainty of a fixed age rule, accords with experience and psychology. It should be followed in this country as part of the common law. The level of intelligence and understanding required is a question of fact. Judgement about a minor's competence involves a consideration of such matters as the ability to understand the issues and circumstances; the maturity and degree of autonomy; the age of the minor; the complexity and nature of the issue involved; and the nature and effect of any medical condition with which the minor presents. Although the issue under consideration in Gillick involved whether a doctor could lawfully prescribe contraception for a girl under 16 without her parents’ consent, the operation of the principle is not confined to “medical treatment” narrowly defined. Rather, the principle is directed to the broader question of parental rights and a minor’s capacity to make informed (or competent) decisions in relation to a range of matters.[3] Even before Gillick was decided the common law had, in a limited category of cases, recognised that the views and wishes of a child over a certain age demanded some consideration. These cases, known as the “age of discretion” cases, involved proceedings in which a parent or guardian sought a writ of habeas corpus to secure the return of a child who had left home without consent. The courts would refuse an order if the child had attained the age of discretion, which came to be regarded as 14 years for boys and 16 for girls, and the child did not wish to return. The principle underlying this refusal was that a child who had attained this age had sufficient understanding to make his or her own decisions.