17 – 18 January 2024 (hearing); 01 February 2024 (mention)
Date of orders:
19 January 2024
Decision date:
02 February 2024
Jurisdiction:
Equity - Duty List
Before:
Meek J
Decision:
Medical treatment ordered
Catchwords:
COURTS — Jurisdiction — parens patriae — 16 year old child diagnosed with bone cancer (Ewing sarcoma) underwent induction cycles of chemotherapy — Following the completion of 4 of 17 cycles of treatment, PET and MRI scans disclosed spectacular reduction in size of tumour — Scans unable to detect existence of tumour deposits below a threshold of size — The treating practitioner discussed results with the child and parents and other medical professionals — The child and family devout Christians and the child believes she has been miraculously healed and declined further treatment — Uncontested medical evidence suggests the cancer subsists — Issues as to the child’s decision-making capacity and ‘Gillick competence’ — Hospital seeks a declaration that the child (now aged 17) had capacity to refuse the recommended medical treatment — Determined that child ‘Gillick competent’ — In the event that it is found that child is ‘Gillick competent’ no party (Hospital, child and parents) sought an order authorising treatment — However parties accepted the Court had power to make such an order — Considerations regarding whether treatment ought to be authorised — Order made for authorisation of treatment
CIVIL PROCEDURE — Hearings — Suppression and non-publication orders
WORDS AND PHRASES — Miracles and prayer
RELIGION — Nature of miracles and prayer briefly discussed
K v Minister for Youth and Community Services [1982] 1 NSWLR…
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.
Continue reading H v AC
Sign in free to access the full text
Details
AGLC
H v AC [2024] NSWSC 40
Case
[2024] NSWSC 40
Decision Date
CaseChat Overview and Summary
In the case of H v AC, the Family Court of Australia was tasked with deciding on the medical treatment of a 17-year-old diagnosed with Ewing sarcoma. After four cycles of chemotherapy, scans showed a significant reduction in the size of the tumour, though they could not detect any tumour deposits below a certain size threshold. The treating practitioner, along with other medical professionals, discussed the results with the child and their parents. The family, devout Christians, believed the child had been miraculously healed and refused further treatment. Medical evidence, however, suggested that the cancer was still present. The hospital sought a declaration that the child was competent to refuse treatment, a question that hinged on the child's 'Gillick competence'. The court determined that the child was indeed 'Gillick competent', meaning they had the capacity to make their own decisions about medical treatment.
The legal issues before the court were whether the child had the capacity to refuse further medical treatment and whether the court should order treatment against the child's wishes. The court considered the child's religious beliefs and the impact they had on the child's decision-making process. The court also examined the medical evidence and the concept of 'Gillick competence', which refers to a minor's ability to consent to medical treatment. The hospital, the child, and the parents did not seek an order authorising treatment, but they did not contest the court's authority to make such an order if necessary. The court weighed the child's right to make their own decisions against the potential consequences of not receiving further treatment.
The Family Court of Australia concluded that despite the child's 'Gillick competence', compelling treatment was necessary to protect the child's health. The court noted that the child's refusal of treatment could lead to serious harm or even death. The court acknowledged the child's right to hold religious beliefs and make decisions based on those beliefs but determined that the potential medical consequences of not receiving treatment outweighed these rights. The court issued an order authorising the hospital to provide the necessary medical treatment to the child. The court also made orders for suppression and non-publication to protect the child's identity, as is customary in cases involving minors.