H v AC

[2024] NSWSC 40

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

H v AC [2024] NSWSC 40

Hearing dates:

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

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW)

Family Law Act1975 (Cth)

Minors (Property and Contracts) Act1970 (NSW)

Cases Cited:

AC v Manitoba (Director of Child and Family Services) [2009] 2 SCR 181

Bell v The Tavistock and Portman NHS Foundations Trust [2020] EWHC 3274 (Admin); [2021] PTSR 593

CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855

Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193; (2008) 40 Fam LR 122

Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220

Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644

E (Mrs) v Eve [1986] 2 SCR 388; (1986) 31 DLR (4th) 1

Fountain v Alexander (1982) 150 CLR 615; [1982] HCA 16

Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

GR v Secretary, Department of Communities and Justice [2020] NSWSC 892

In re L (An Infant) [1968] P 119

In re N (Infants) [1967] Ch 512

In re O'Hara [1900] 2 IR 232

J v C [1970] AC 668

Johnson v Director-General of Social Welfare (Vic) (1976) 135 CLR 92; [1976] HCA 19

K v Minister for Youth and Community Services [1982] 1 NSWLR 311; (1982) 8 Fam LR 756

King v Low [1985] 1 SCR 87

Minister for Health v AS (2004) 29 WAR 517; [2004] WASC 286

P v NSW Trustee and Guardian [2015] NSWSC 579

R (Bell) v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363; [2022] PTSR 544

R (Bell) v Tavistock and Portman NHS Foundation Trust [2022] PTSR 931

Re A (2022) 11 QR 1; [2022] QSC 159

Re Alex [2004] FamCA 297; (2004) 31 Fam LR 503

Re Bernard [2009] NSWSC 11

Re Imogen (No 6) [2020] FamCA 761; (2020) 61 Fam LR 344

Re Paul [2008] NSWSC 960

Re Rosie (No 2) [2022] NSWSC 1750

Re Rosie (No 3) [2023] NSWSC 37

Re S (Child as parent: Adoption: Consent) [2018] 2 WLR 1029; [2017] EWHC 2729 (Fam)

Re Sally [2009] NSWSC 1141

Re X (a minor) [1975] 1 All ER 697

Royal Alexandra Hospital for Children trading as Children’s Hospital at Westmead v J [2005] NSWSC 465; (2005) 33 Fam LR 448

Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218; [1992] HCA 15

Small v Phillips (No 3) [2020] NSWCA 24

The Hospital v S (a minor) [2019] NSWSC 642

The Sydney Children’s Hospital Network v X [2013] NSWSC 368

Wellesley v Duke of Beaufort (1827) 2 Russ 1; 38 ER 236

Wellesley v Wellesley (1828) 2 Bli N S 124; 4 ER 1078

X v The Sydney Children's Hospitals Network (2013) 85 NSWLR 294; [2013] NSWCA 320

Young v Young [1993] 4 SCR 3

Texts Cited:

Bible - New International Version

Carson, Donald Arthur et al (eds), New Bible Commentary (21st Century ed, 1994, Inter-Varsity Press)

Donne DD, John, Dean of St Paul’s Cathedral, Devotions (Upon Emergent Occasions, and several steps in my Sickness) (1840)

Macquarie Dictionary, online ed

Marshall, Ian Howard et al (eds), New Bible Dictionary (3rd ed, 1996, Inter-Varsity Press)

Shead, Stephen, Growing in Prayer - Learning to Pray with Dependence and Delight (2019, Matthias Media)

WebsterWorld, “Betty Cuthbert”, accessed 30 January 2024

Category:

Principal judgment

Parties:

H (Plaintiff)
AC (First Defendant)
The Mother (Second Defendant)
The Father (Third Defendant)

Representation:

Counsel:
K Kumar (Plaintiff)
K Shea (First Defendant)
J Clifton (Second and Third Defendants)

Solicitors:
NSW Ministry of Health (Plaintiff)
Legal Aid NSW (First Defendant)
Lion Legal (Second and Third Defendants)

File Number(s):

2023/465857

Judgment

Introduction

1. HIS HONOUR: Events bearing upon the inestimable sanctity of life and its intersection with faith beliefs tend to give rise to some of the most palpable forensic debates and challenging legal decisions.

2. In July 2023, barely seven months ago, the life of the first defendant, a young girl (AC) aged 16 at the time (but now recently turned 17), was radically transformed. Whilst on holiday, AC experienced hip pain symptoms which quickly led to a diagnosis of Ewing sarcoma, a cancer in the bone, leading to treatment by staff at the plaintiff hospital and requiring her to have treatment in Sydney away from her home.

3. Paradoxically, the considerable success of the initial medical treatment has given rise to various dilemmas which lie at the heart of these proceedings. The parties seek a determination as to AC’s ability to make decisions. The Court is also faced with a further issue, namely, should the treatment be continued in circumstances in which AC has made a decision to decline treatment?

4. Each of the plaintiff, on the one hand, and AC and her parents, on the other hand, have different and genuinely held views as to AC’s capacity to make decisions.

5. By summons filed 22 December 2023, the plaintiff sought to invoke the parens patriae jurisdiction of the Court in a manner in which I will shortly describe. The plaintiff further sought suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) (CSNPO Act).

6. The proceedings were originally listed before Slattery J, who made certain suppression and non-publication orders. As a consequence of those orders, the following anonymized nomenclature has been adopted in these proceedings:

1. the plaintiff hospital is referred to as “H”;

2. the first defendant child is referred to as “AC”;

3. the second defendant, AC’s mother, is referred to as “the mother”;

4. the third defendant, AC’s father, is referred to as “the father”; and

5. the father and mother are referred to as “the parents”.

7. The suppression orders prohibited the publication or other disclosure of any information tending to reveal the identity of the above parties and, in addition, any witness in the proceedings and any of the medical practitioners, nursing staff or other such persons who have provided or are to provide medical, surgical and nursing or ancillary treatment to AC.

8. On 30 January 2024, the solicitor for AC, with the knowledge and consent of the other parties, proposed the discharge of Orders 1 and 2 of the Orders made by the Court on 22 December 2023 and proposed some alternative suppression and non-publication orders.

9. On 1 February 2024, I listed the proceedings for mention and raised with the legal representatives some practical issues that I considered might arise with the proposed alternative suppression and non-publication orders. Ultimately, after a degree of discussion, I indicated that I would deliver these reasons for judgment in a form appropriately anonymized, the parties could consider their position, and I would give the parties leave to relist the matter to make any application in relation to any alternative suppression and non-publication orders.

10. In Re Rosie (No 2) [2022] NSWSC 1750, I addressed the relevant provisions of the CSNPO Act. I stated at [360]-[374]:

360. Lastly, it is necessary to address a question regarding the orders made pursuant to the Court Suppression and Non-publication Orders Act2010 (NSW) (CSNPO Act).

361. I endorse what Robb J has set out regarding the application of the principle of open justice in Re Anita (No 2) at [87]-[108].

362. The provisions of the CSNPO Act expressly do not limit or otherwise affect the Court’s inherent jurisdiction: s 4.

363. A non-publication order is an order that prohibits or restricts the publication of information (but does not otherwise prohibit or restrict the disclosure of information): s 3 CSNPO Act.

364. A suppression order on the other hand is an order that prohibits or restricts the disclosure of information (by publication or otherwise): s 3 CSNPO Act.

365. In that respect, a suppression order will often be broader than a non-publication order.

366. In either case, in determining whether to make such an order the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 6 CSNPO Act.

367. The power of the Court to make orders is addressed in s 7 CSNPO Act and the grounds on which any such order may be made is addressed in s 8 CSNPO Act.

368. In proceedings involving a secure accommodation order, at the very least there is sufficient grounding to make a suppression order or non-publication order in circumstances where the order is necessary to protect the safety of a CYP: s 8(1)(c).

369. An order may be made on the application of a party to the proceedings or any other person considered by the Court to have a sufficient interest in the making of the order: s 9 CSNPO Act.

370. There are specific provisions indicating who can or must be heard on such an application: s 9(2) CSNPO Act.

371. Provisions of the CSNPO Act address other matters including:

1. the time for making such an order: s 9(3);

2. the specification of grounds on which the order is made: s 8(2); and

3. the making of orders on terms and the wording of any such orders: s 9(4)-(5).

372. An order can be made to apply outside New South Wales (i.e. to anywhere in the Commonwealth) where the Court is satisfied that the order is necessary for achieving the purpose for which the order is made: s 11(2), (3) CSNPO Act.

373. The extent of the operation of the order ought to be specified in the wording of the order: s 11(1) CSNPO Act.

374. Further, the wording of the order must indicate a period for which the order is operative which is no longer than is reasonably necessary to achieve the purpose for which it was made: see s 12 CSNPO Act; DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [42]-[50] per Leeming JA, Bell P (as his Honour then was) at [1] and Meagher JA at [2] agreeing.

11. The Court may make a suppression order or non-publication order on one or more of the following grounds pursuant to s 8(1) CSNPO Act:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

12. In outlining the facts in these reasons for judgment, for the purposes of preserving anonymity and facilitating the existing suppression orders, I have not descended to very specific detail and I will use appropriate nomenclature to identify the various witnesses and other relevant parties.

13. The principal substantive relief sought by H is a declaration that AC has the capacity to refuse the following treatment, which has been recommended by the plaintiff, to treat her Ewing sarcoma:

1. local therapy to the pelvis: surgery and/or radiotherapy;

2. whole lung radiation; and

3. continuation of systemic chemotherapy as per COG AEWS1031;

(the recommended treatment).

14. Only in the event the Court determined that AC does not have capacity to refuse the recommended treatment did H seek, in the alternative, a declaration that the responsible medical practitioners, nursing and other staff at the hospital may lawfully carry out the recommended treatment on AC.

15. AC’s parents support her in her decision to stop having treatment.

16. On 28 December 2023, Walton J made procedural orders in the matter to prepare it for hearing. The summons was fixed for hearing before myself as Duty Judge on 17 and 18 January 2024.

17. On the hearing, Ms Kumar of counsel appeared for H, Ms Shea of counsel appeared for AC and Mr Clifton of counsel appeared for the parents.

18. At the conclusion of the urgent hearing, I indicated to the parties that I accepted that AC has the ability to make decisions but, nonetheless, I declined to make a declaration to that effect.

19. Even though no party sought an order for authorisation of treatment to AC in the event that I found that she had capacity to make a decision regarding treatment, notwithstanding that, I indicated to the parties that, in all the circumstances of the case, I considered that it was in the welfare and best interests of AC at the time of announcing the decision that treatment should be continued. I asked counsel to confer regarding a form of order and, with some tinkering to the precise wording, I made an order for continued treatment.

20. These are the reasons for my decision.

21. I will cite the evidence in the proceedings, at least in part, by reference to the affidavits and reports of parties or witnesses, transcript pages and exhibit numbers, and I will cite submissions by reference to H’s opening written submissions (HOS), AC’s opening written submissions  (ACOS), the parents’ opening written submissions (POS) and transcript pages.

Evidence

22. On the hearing, each of the parties relied upon affidavit evidence.

23. H relied upon an affidavit of the paediatric medical oncologist whom I will refer to as “Dr A”. Dr A annexed to his affidavit correspondence from another paediatric medical specialist whom I will refer to as “Professor B” and a report from a clinical and forensic psychologist whom I will refer to as “Dr C” (I will refer to the latter below as the “Dr C Report”).

24. AC relied upon an affidavit of herself.

25. The parents relied upon an affidavit of the mother, the father and a report and supplementary report from a clinical psychologist whom I will refer to as “Mr D”. I will refer to Mr D’s reports below as “Exhibit P1” and “Exhibit P2”, being the notations they were given on the hearing.

26. Each of Dr A, Dr C, AC and the mother were cross-examined on the hearing.

27. Dr A is a senior staff specialist and counts among the most impressive professional witnesses that I have encountered in legal practice. It was evident that he was highly sensitive to the dilemmas facing AC and clearly empathetic to her situation. He was able to explain relatively complex medical procedures and concepts simply.

28. AC and her mother were only briefly cross-examined. In the limited time that they were each in the witness box, AC and her mother presented as transparently honest. I unreservedly accept their evidence.

Issues in dispute

29. It is necessary to say something about the framing of the issues in the proceedings.

30. The relief sought by H invoked the parens patriae jurisdiction. Ms Kumar noted that some consideration had been given to potential alternatives, including the prospect of H providing treatment pursuant to s 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act).

31. Ms Kumar in the HOS explained that the reason H did not seek relief under the Care Act but rather sought parens patriae relief is that it is desirable from a medical point of view that, if necessary, the recommended treatment be provided before the situation becomes an emergency, given the impact that any delay in providing the treatment (see below) will have on the prognosis for AC. H wishes that the Court should determine this issue before any deterioration of AC’s condition to the point that emergency treatment is required. H contends that such an approach has been recognised previously: HOS [26], citing Re Paul [2008] NSWSC 960 at [8] per Hamilton J, Re Bernard [2009] NSWSC 11 at [19] per Gzell J and The Sydney Children’s Hospital Network v X [2013] NSWSC 368 (Re X – Gzell J) at [46] per Gzell J.

32. The parens patriae relief sought by H, at first blush, might give the impression that H considers that AC has capacity to refuse to consent to the recommended treatment.

33. However, the HOS indicated that H is concerned that AC may not have the capacity to refuse consent on the basis that she does not have a sufficient understanding to give a valid consent, but seeks declaratory relief to avoid any doubt about that in circumstances where AC’s decision to refuse treatment is supported by her parents: HOS [9], [24].

34. The issue proposed by Ms Kumar was to the effect that the Court should determine whether AC has capacity to refuse the recommended treatment. If the Court determined AC did not have capacity, the Court should determine whether it is in the best interests of AC that a declaration be made which would allow for the recommended treatment to be lawfully given: HOS [24].

35. The framing of the issues by Ms Shea and Mr Clifton, in the ACOS [2]-[6] and POS [5]-[9], was to like effect. Mr Clifton, in particular, referred to what is termed in caselaw as ‘Gillick competence’.

36. The issues being framed in the above-mentioned way at the commencement of the hearing, it occurred to me that the parties may have been proceeding on the basis that a positive finding that AC is “competent” or has “capacity” to make a decision is a decisive matter such that, should I find that AC has such competence or capacity, that would be the end of the matter and the Court would not entertain the alternative relief or consider relief of its own motion.

37. For that reason, at the commencement of the hearing, I raised with counsel for the parties my concern that there should be clarity regarding relief so that everyone was effectively on the same page in respect of the issues and possible outcomes.

38. To be clear, no party sought an order for authorisation of treatment to AC in the event that I found that she had capacity to make a decision regarding treatment.

39. I discussed with counsel that, given the plaintiff had invoked the parens patriae jurisdiction, the Court (in terms of jurisdiction) is not necessarily bound by the framing of an issue as to whether AC has capacity or not, as if a finding on that would be determinative of the outcome of the case. The jurisdiction is a broader one than that.

40. I observed that the Court, in exercising the jurisdiction and taking into account all of the relevant circumstances (including any finding of AC’s capacity to make a decision), might nonetheless determine that it is in the best interests of AC that treatment be given: T 3-4.

41. Each of the counsel indicated that they understood that what I had articulated above came as no surprise to them, and they accepted that a possible outcome was that the Court might, notwithstanding a finding that AC has capacity to make a decision, nonetheless determine it is appropriate to make an order permitting treatment to be carried out, it being in her best interests: T 4-5, 85, 124, 126.

Jurisdiction

Consent and capacity to consent to medical treatment

42. At common law, a person who is sui juris has the right to determine what happens to their body, including by consenting to or refusing medical treatment. Non-consensual medical treatment of a sui juris person may constitute a criminal assault and/or a tortious trespass to the person: Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 (Marion’s Case) at 267 per Brennan J (as his Honour then was) and at 309-310 per McHugh J; [1992] HCA 15.

43. Under the general law, there is no single test or fixed standard for capacity to perform or engage in legally valid acts. Rather, capacity is decided, in relation to each particular situation, by reference to whether the person has sufficient mental ability to be capable of understanding the general nature of what he or she is doing by his or her participation in the activity or decision making: see generally Gibbons v Wright (1954) 91 CLR 423 at 437-438 per Dixon CJ, Kitto and Taylor JJ; [1954] HCA 17.

44. In relation to questions involving medical treatment, depending upon the specific circumstances of any given case, statutory provisions may be applicable.

45. The age of majority in New South Wales is 18 years: Minors (Property and Contracts) Act1970 (NSW), s 9.

The parens patriae jurisdiction

46. The parens patriae jurisdiction has an ancient and rich history. Aspects of the extent of the jurisdiction have been considered by the High Court (e.g. Marion’s Case), the Court of Appeal (see X v The Sydney Children's Hospitals Network (2013) 85 NSWLR 294; [2013] NSWCA 320 (Re X - CA)) and first instance judges of this Court (e.g. Lindsay J in GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 at [23]-[32]).

47. The inherent, protective jurisdiction of the Court exists for the protection of those (including, but not limited to, minors) who are unable to protect themselves. It accords paramountcy to the welfare of the person in need of protection. Its ambit cannot be exhaustively defined: see CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [79] per Lindsay J, referring to Marion’s Case at 258–259 per Mason CJ, Dawson, Toohey and Gaudron JJ citing inter alia E (Mrs) v Eve [1986] 2 SCR 388 at 407–417; (1986) 31 DLR (4th) 1 at 14–21 (Re Eve) - the judgment of the Court was delivered by La Forest J; Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243 and Wellesley v Wellesley (1828) 2 Bli N S 124 at 124, 136 and 142; 4 ER 1078 at 1081, 1083 and 1085; Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220 (Re Thomas) at [22] et seq per Brereton J (as the Commissioner then was).

48. What is involved in the exercise of the Court’s parens patriae role will depend upon the precise nature of the presenting issue. In particular, it may be that the parens patriae jurisdiction is invoked simpliciter (as in this case), or in the context of a statutory framework in which a matter falls to be determined, or that particular statutory relief is sought alternatively to parens patriae relief.

49. Nonetheless, there is a broad evaluative or discretionary content in most decisions made on an exercise of protective jurisdiction: see P v NSW Trustee and Guardian [2015] NSWSC 579 (P v NSW Trustee and Guardian) at [191] per Lindsay J. Further, many decisions are, practically speaking, ‘interlocutory’ in character in the sense that they may be subject to review or further consideration as the exigencies of the case may require. This is unsurprising given the nature of the jurisdiction and its focus upon the welfare and best interests of the person, which is time- and circumstance-dependent and is inherently susceptible to change as life has no promise of absolute certainty.

50. The certainty and ideal of finality which underpins so many aspects of law is not ignored in the parens patriae jurisdiction but may, in any given case, yield to the requirements of justice. Those requirements accommodate the reality that addressing the welfare and best interests of the person under consideration may require review of decisions from time to time, and are sensitive to material changes in the life and circumstances of such person.

51. Thus, the nature of the Court’s parens patriae jurisdiction is such that decisions made concerning or impacting upon the welfare of children are not necessarily final in the sense in which there is a finality of decisions or res judicata in other jurisdictional areas of the Court. Rather, decisions made regarding the welfare of children are susceptible to changes of circumstances and review at least in the above sense: cf P v NSW Trustee and Guardian at [188].

52. Situations under which the parens patriae jurisdiction can be exercised are legion.  For example, it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations: Re Eve at 426 referring with approval to comments of Latey J in Re X (a minor) [1975] 1 All ER 697 at 699.

53. Specifically, the nature of the parens patriae jurisdiction, as it applies to considerations of medical treatment in relation to a person, has been said to call for an exercise of “an independent and objective judgment” and balancing the advantage or disadvantage of the medical step under consideration: Minister for Health v AS (2004) 29 WAR 517; [2004] WASC 286 (Minister for Health v AS) at [19] per Pullin J; Re X – Gzell J at [11]; Re X – CA at [31], [68], [70] per Basten JA (Beazley P – as her Excellency then was – and Tobias AJA agreeing).

54. Clearly a form of judicial assessment of relevant considerations is involved: see e.g. Re X – CA at [55], [68]. In a case such as the present, the Court is not balancing the interests of the individual against broader public or governmental interests, but is balancing fundamental principles which are in tension in their application to an individual: Re X – CA at [57]. Where a claimant before the Court seeks relief based on other jurisdiction in addition to or alternatively from the parens patriae jurisdiction, such as by force of statutory provisions, charters of rights, bills of rights and constitutional provisions, different considerations may arise for the Court in addressing such other relief.

55. All humans affect others and are affected by a myriad of relationships. “No man is an island, entire of itself; every man is a piece of the continent, a part of the main:” John Donne DD, Dean of St Paul’s Cathedral, Devotions (Upon Emergent Occasions, and several steps in my Sickness) (1840) Meditation XVII at 100. However, the parens patriae jurisdiction is not used for or directed to the benefit of parents or others related to or connected with a child that is the subject of the Court’s consideration. Its exercise is directed to, and in that sense circumscribed to, doing what is necessary for the benefit and protection of such child: Re Eve at 429-430. Nonetheless, clearly the outcome of any order may have an impact on a parent or others closely connected to such child whether it be distressing, salving or otherwise.

56. The types of medical intervention which may be authorised by the Court under its parens patriae jurisdiction or more broadly (where applicable) under its protective jurisdiction are varied. Many cases involve blood or platelet transfusions: e.g. Minister for Health v AS; Re X – CA.

57. In New South Wales, cases have involved:

1. an abortion: K v Minister for Youth and Community Services [1982] 1 NSWLR 311; (1982) 8 Fam LR 756;

2. sterilisation of an intellectually disabled child: Re Eve; Marion’s Case;

3. administration of a vaccine: Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193; (2008) 40 Fam LR 122 (Re Jules);

4. discontinuing life support: The Hospital v S (a minor) [2019] NSWSC 642; and

5. authorisation of the administration of depot injections of psychotropic medication: Re Rosie (No 3) [2023] NSWSC 37 (Re Rosie (No 3)).

58. In other jurisdictions, including in the area of family law, relief has been sought for many different presenting issues including, for example, treatment for gender dysphoria: see Re Imogen (No 6) [2020] FamCA 761; (2020) 61 Fam LR 344 (Re Imogen (No 6)).

59. Importantly, in the cases of medical intervention, there are distinctions between the sort of interventions that may arise in any given case. In some cases, the life of the person may be in peril, in other cases not necessarily so. Thus, for example, it has been observed that, excepting rare cases, sterilisation as a medical procedure is distinctive from other interventions, in that if the operation is not performed, the physical health of the person is not necessarily in danger, necessity or emergency: Re Eve at 428 citing The Law Reform Commission of Canada in Sterilization, Working Paper 24 (1979) at 3.

60. In the case of minors, the issue of consent to medical treatment is, as a consequence of Marion’s Case, approached by reference to what is known as the ‘Gillick competence’: see Marion's Case at 237 per Mason CJ, Dawson, Toohey and Gaudron JJ, referring to and approving Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (Gillick). Parental power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacities and maturity grow, and this rate of development depends on the individual child: Marion’s Case at 237. A minor is 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 (Gillick competent): Marion’s Case at 237 referring to Gillick at 189 per Lord Scarman and also 169 per Lord Fraser of Tullybelton, 194-195 per Lord Bridge of Harwich.

61. Relevantly, in Re X – CA, Basten JA (as his Honour then was) observed that in Johnson v Director-General of Social Welfare (Vic) (1976) 135 CLR 92 at 97; [1976] HCA 19, the Court asserted not merely a direct role to determine issues as to the best interests of children, but also a supervisory role with respect to the actions of parents, public servants and others to whose care children are committed, whether under the general law, by statute or by court order: Re X – CA at [26]-[27].

62. A hallmark of the Court's concern with the welfare of a child is that, whilst the Court's jurisdiction is a broad one, it should act cautiously: Re X – CA at [2] per Beazley P, citing Fitzgibbon LJ in In re O'Hara [1900] 2 IR 232 at 239-240, the House of Lords in J v C [1970] AC 668 at 695, 706 and 722 and Brennan J in Marion's Case at 280; see also Re Eve at 427; Re Thomas at [35] per Brereton J.

63. Generally, the greater the interference with the liberty of the child, the greater the caution that is required: Re Sally [2009] NSWSC 1141 at [57] per Slattery J; Re Thomas at [35].

64. Differing measures of legal protection are required according to the physical and mental capacities of individuals at particular times: Marion’s Case at 266 per Brennan J. Human dignity is a value common to municipal law and to international instruments relating to human rights: Marion’s Case at 266. As Brennan J stated at 267:

Human dignity requires that the whole personality be respected: the right to physical integrity is a condition of human dignity but the gravity of any invasion of physical integrity depends on its effect not only on the body but also upon the mind and on self-perception.

65. An account of the parens patriae jurisdiction and its relationship with wardship was given by La Forest J, for the Supreme Court of Canada, in Re Eve at 407-408.

66. Suffice it to say that the parens patriae jurisdiction permits protective orders to be made either by the machinery of wardship or by ad hoc orders which leave the guardianship and custody of the child otherwise unaffected: Marion’s Case at 280 per Brennan J, citing Fountain v Alexander (1982) 150 CLR 615 at 626; [1982] HCA 16 per Gibbs CJ; In re N (Infants) [1967] Ch 512 at 531 per Stamp J; In re L (An Infant) [1968] P 119 at 156-157 per Lord Denning MR.

67. There are some important niceties regarding the nature of what occurs when the Court is approached to make determinations regarding a child’s ability to consent to treatment and given competence, and specifically, distinctions as between ‘authorisation’ and ‘consent’.

68. In Marion’s Case, the plurality addressed what is involved in authorisation at 259. When the Court is asked to authorise treatment, what is sought is not the Court’s consent as, for example, in the signing of hospital forms, but its authorisation. The function of the Court when asked to authorise such treatment is to decide whether, in the circumstances of the case, that is in the best interests of the child: Marion’s Case at 259.

69. As I observed in Re Rosie (No 3) at [90]-[93], there is caselaw which addresses differences between what is said to be ‘authorisation’ of medical treatment and ‘consent’ for treatment: see for example the comments of Brereton J in Re Jules at [13]-[21].

70. No party disputed that I could (rather than should) ‘authorise’ treatment, notwithstanding that no party sought ‘consent’ for positive treatment in the event that I found that AC was ‘Gillick competent’. The distinctions between ‘authorisation’ of medical treatment and ‘consent’ for medical treatment were not debated before me and, in those circumstances, there is no necessity for me to address the question of precisely what is involved in framing of parens patriae orders in terms of authorisation or consent.

Guiding considerations

71. In Re X – Gzell J, his Honour addressed considerations in exercising the jurisdiction in the case of decisions regarding refusal, on the one hand, or direction for, on the other hand, medical treatment:

12. Whilst determining what is in the best interests of the child necessarily involves a particular focus on the individual circumstances of each case, there are a number of authorities in which courts have suggested an approach as to the matters which should be considered in determining or assessing what is in the child's, or young person's, best interests: Re Alex [2004] FamCA 297; (2004) 31 Fam LR 503 at 537-539 [201]-[213].

13. Nicholson CJ suggested that regard should be had to the following factors: the particular condition of the child who requires the procedural treatment; the nature of the procedure or the treatment proposed; the reasons for which it is proposed that the procedure or treatment be carried out; the alternative courses of treatment that are available; the desirability and effect of authorising the procedure or treatment proposed rather than the available alternatives; the physical effect on the child and the psychological and social implications for the child of (a) authorising the proposed procedure or treatment; and (b) not authorising the proposed procedure or treatment; the nature and degree of any risk to the child of (a) authorising the proposed procedural treatment; and (b) not authorising the proposed procedure or treatment; the views (if any) regarding the proposed procedure or treatment and any alternative procedure or treatment expressed by (a) the guardian of the child, (b) the person who is entitled to the custody of the child, (c) the person who is responsible for the daily care and control of the child, and (d) the child.

14. In [Minister for Health vAS], Justice Pullin, in determining an application to provide blood transfusions to a 15 year old male of Jehovah's Witness faith, who was suffering from cancer (in the face of opposition by the boy and his parents) considered factors including the nature of the disease, the nature of the treatment, the reasons for the treatment, the desirability of the treatment, the risks to the child's health with and without the proposed treatment, the faith and views of the child and his parents and the views of the attending doctors.

15. It has been held that, whilst the parents' wishes may be relevant considerations, they are not determinative. Further, in respect of older children, or young persons, sometimes described as "mature minors", it has been held that, whilst the fact of such child or young person refusing to consent to treatment is a relevant and important factor, it does not prevent the court from authorising medical treatment where the best interests of the child or young person require it: [Minister for Health vAS] at 522 [20]-[23]; [Royal Alexandra Hospital for Children trading as Children’s Hospital at Westmead v J [2005] NSWSC 465; (2005) 33 Fam LR 448] at 456-457 [50].

16. It has been further observed that the court's power in its inherent jurisdiction to countermand the wishes of the child is to be exercised sparingly and with great caution: [Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644] at [103].

72. In relation to so-called “best interests considerations”, Ms Shea referred to the judgment of LeBel, Deschamps, Abella and Charron JJ (delivered by Abella J) in AC v Manitoba (Director of Child and Family Services) [2009] 2 SCR 181 (Supreme Court of Canada) (AC v Manitoba) as follows:

81. The general purpose of the “best interests” standard is to provide courts with a focus and perspective through which to act on behalf of those who are vulnerable. In contrast, competent adults are assumed to be “the best arbiter[s] of [their] own moral destiny” (Giles R. Scofield, “Is the Medical Ethicist an ‘Expert’?” (1994), 3(1) Bioethics Bulletin 1, at p. 9), and so are entitled to independently assess and determine their own best interests, regardless of whether others would agree when evaluating the choice from an objective standpoint.

82. The application of an objective “best interests” standard to infants and very young children is uncontroversial. Mature adolescents, on the other hand, have strong claims to autonomy, but these claims exist in tension with a protective duty on the part of the state that is also justified.

…

84. In my view, any solution to this tension must be responsive to its complexity. As Gilmour points out, and as the English Court of Appeal in Re W [[1992] 3 WLR 758; [1992] 4 All ER 627] confirmed, the distinction between principles of welfare and autonomy narrows considerably — and often collapses altogether — when one appreciates the extent to which respecting a demonstrably mature adolescent’s capacity for autonomous judgment is “by definition in his or her best interests” (§8.54). (See also Joan M. Gilmour, “Death, Dying and Decision-making about End of Life Care”, in Jocelyn Downie, Timothy Caulfield and Colleen M. Flood, eds., Canadian Health Law and Policy (3rd ed. 2007), 437, at p. 443.)

…

87. The more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight that will be given to his or her views when a court is exercising its discretion under s. 25(8) [of the Manitoba Child and Family Services Act, C.C.S.M. c. C80]. In some cases, courts will inevitably be so convinced of a child’s maturity that the principles of welfare and autonomy will collapse altogether and the child’s wishes will become the controlling factor. If, after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent’s views ought to be respected. Such an approach clarifies that in the context of medical treatment, young people under 16 should be permitted to attempt to demonstrate that their views about a particular medical treatment decision reflect a sufficient degree of independence of thought and maturity.

88. As L’Heureux-Dubé J. said in [Young v Young [1993] 4 SCR 3], “courts must be directed to create or support the conditions which are most conducive to the flourishing of the child” (p. 65 (emphasis added)). And in [King v Low [1985] 1 SCR 87], McIntyre J. observed: “It must be the aim of the Court . . . to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult” (p. 101 (emphasis added)). When applied to adolescents, therefore, the “best interests” standard must be interpreted in a way that reflects and addresses an adolescent’s evolving capacities for autonomous decision making. It is not only an option for the court to treat the child’s views as an increasingly determinative factor as his or her maturity increases, it is, by definition, in a child’s best interests to respect and promote his or her autonomy to the extent that his or her maturity dictates. (See John Eekelaar, “The Importance of Thinking that Children Have Rights” (1992), 6 Int’l J.L. & Fam. 221, at pp. 228-29, and “The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self-Determinism” (1994), 8 Int’l J.L. & Fam. 42.)

73. Helpful as the comments are, it should be remembered that the context of AC v Manitoba involved the Court being approached not, strictly speaking, under the parens patriae jurisdiction, but pursuant to the Manitoba Child and Family Services Act, C.C.S.M. c. C80, s 25(8).

AC’s beliefs

74. Each of Dr C and Mr D state AC believes that she has a personal relationship with Jesus and has “responded to his love and care”: Exhibit P1 [28]; Dr C Report [34]. She regards Jesus as her “lord and saviour”, and believes she would have “eternal life in heaven” after death: Exhibit P1 [54].

75. AC and her family attend a Church of a particular denomination. AC also attends a youth group of another Christian denomination. AC’s mother indicates that they have been regular attendees and active members of the Church, and that the Church and the youth group are important parts of her life “as she believes part of the Christian life is spending time with others who also share the same beliefs”. A school report from semester one 2022 describes AC as a “young woman of faith” and notes that she attends an optional lunchtime Bible study. Each of Dr C and Mr D describe AC and her parents as “devout” Christians by reference to their particular Christian denomination.

76. AC believes that God has been active in her plight and that her cancer has been cured by way of a miracle: Exhibit P1 [30]; Dr C Report [31]. AC, in discussion with Dr C, referenced the many healing miracles of Jesus, and specifically referred to the healing of the bleeding woman and the connection between healing and the woman’s faith in Jesus’ words to her “Daughter, your faith has healed you. Go in peace”: Luke 8:43-48, Bible - New International Version (NIV).

77. The noun “miracle” derives its meaning in context. It generally conveys: “an effect in the physical world which surpasses all known human or natural powers and is therefore ascribed to supernatural agency”; “a wonderful thing”; and “a marvel”: Macquarie Dictionary, online ed. 

78. In the Bible, a number of Hebrew, Aramaic and Greek words are used to refer to the activity in nature and history of the living God. They are variously translated by use of English words such as ‘miracles’, ‘wonders’, ‘signs’, ‘mighty acts’ and ‘powers’: Ian Howard Marshall et al (eds), New Bible Dictionary (3rd ed, 1996, Inter-Varsity Press) (NBD) at 771.

79. The Scripture of the Bible contemplates God’s supernatural activity, both in the sense of God’s constant sovereign providence and also his particular acts: NBD at 771. Paul views creation as being continually dependent upon the sustaining activity of God and subject to his sovereign will: Colossians 1:16-17 NIV; NBD 771.

80. In the Bible, the context of the miracle or sign helps to clarify its purpose. John records Jesus’ first miracle at Cana (turning water into wine) and his last miracle before going to the cross at Bethany (the raising of Lazarus) as expressly revealing his glory: John 2:11; John 11:4, 40 NIV. The miracles or ‘signs’ are not recorded by John as incidental events but as having an elegant, vivid and unmistakable connection to John’s purpose in writing his Gospel: John 20:30-31 NIV.

81. Depending upon context, a miracle may have the effect of engendering faith, confirming faith in people or, conversely, hardening the hearts of others: e.g. John 11:45-50 NIV. AC’s specific reference of the miracle in relation to the bleeding woman is a clear example of Scriptural connection between a miracle demonstrating Christ’s glory or character as God and faith.

82. The noun “prayer” also derives its meaning in context. It generally conveys “a devout petition to, or any form of spiritual communion with, God or an object of worship”: Macquarie Dictionary, online ed.

83. Christian prayer is uniquely different from prayer in other religions in at least a couple of respects apt to AC’s circumstances.

84. First, a Christian talks to God as the Christian’s heavenly father: Luke 11:2 NIV. This relationship is made possible to the Christian who has been saved through faith (John 3:16 NIV) by grace (Romans 3:21-31; Ephesians 1:7, 2:5, 2:8; 1 Peter 3:18 NIV) and adoption as a child of God: John 1:12, Romans 8:15, 8:23, 9:4; Galatians 4:5, Ephesians 1:5-8 NIV; Stephen Shead, Growing in Prayer - Learning to Pray with Dependence and Delight (2019, Matthias Media) (Shead) 11-12.

85. Secondly, Christian prayer is the Christian’s faithful response to God as he speaks to the Christian through his word and calling upon God to do what he has promised to do: 2 Sam 7:25-26 NIV. Jesus gives guide for prayer, which guide includes what is known as the Lord’s prayer (Matt 6:9-13; Luke 11:2-4 NIV). Many of the parables teach aspects of prayer: e.g. Luke 11:5-13. A Christian has confidence that if she or he asks God anything according to God’s will, God will hear the prayer and the Christian will receive what is asked: John 14:13-14; 1 John 5:14 NIV. If it is accordance with God’s will, a prayer for saving in the face of death may granted: e.g. Hezekiah’s prayer as recounted in Isaiah 38:1-8 NIV. A prayer for saving may also be declined if it is not in accordance with God’s will. The quintessential example is Jesus’ prayer in Gethsemane (Mark 14: 35-36 NIV):

Going a little farther, he fell to the ground and prayed that if possible the hour might pass from him.“Abba, Father,” he said, “everything is possible for you. Take this cup from me. Yet not what I will, but what you will.”

86. Jesus submits to his Father’s will, which (in his case) is for Jesus to suffer and die according to God’s plan: Mark 8:31 NIV.

87. The famous Australian athlete Betty Cuthbert is a remarkable instance of someone searching for healing, and yet receiving joy by finding God instead. In her own words ^[1] :

I'd always loved God but I didn't know anything about Jesus until I became very sick with multiple sclerosis. When I was 47 someone said to me, 'Go to that Church and they'll heal you'. So I went along looking for the healing instead of the healer. After going to different places and finding out more, I found out about the healer, and then I couldn't care less about the healing. That's the best thing. I get so much joy out of it and I want to tell other people about it. I think that's why I was meant to come back to the Olympics in 1964, because now I'm well known and it helps me to tell people about Jesus.

1. WebsterWorld, “Betty Cuthbert”, accessed 30 January 2024

88. Because of the gift of adoption, prayer is said to be a place of peace and comfort for a Christian, not fear and uncertainty, such that in the approach to God as Father, the Christian can have complete confidence that God will listen with love and respond by doing what is best for them: Shead at 13; Ephesians 3:12 NIV. Christians may be confident that in all things God works for the good of those who love him, who have been called according to his purpose: Romans 8:28 NIV. That ‘good’ includes conforming the believer to the image of Christ (Romans 8:29 NIV) and completing the good work God began in the Christian until the day of Christ’s return (Philippians 1:6 NIV), thus enabling the Christian to ultimately enjoy God’s presence forever: e.g. Psalm 16:9-11; John 3:14-17 NIV; Donald Arthur Carson et al (eds), New Bible Commentary (21st Century ed, 1994, Inter-Varsity Press) at 1141.

89. In this case, there is evidence that AC believes that if the cancer returns it would represent God’s will, and her belief of death is that she would be returned to Jesus, her “lord and saviour”, and she would have “eternal life in heaven”: Exhibit P1 [54].

90. The fact that AC describes herself as a Christian having a personal relationship with Jesus, has prayed (and no doubt continues to pray) about her circumstances, accepts God’s will and believes in eternal life with God is, in light of what I have briefly outlined above, entirely conventional within the Christian faith.

91. Beyond doubt, in the exercise of the parens patriae jurisdiction, the religious beliefs of a particular section or group within society are not to be discounted or disregarded, even if such beliefs are not held by the broader community: Re X – CA at [6] per Beazley P and at [64] per Basten JA. In this regard, Basten JA observed (at [64]):

Nor is the balance necessarily achieved by characterising the young person's choice as either rational or irrational. Factors, including minority religious beliefs, may be deemed irrational by broader community standards. They are not, for that reason, to be disregarded - indeed with respect to an adult it has been said that "it matters not whether the reasons for the refusal were rational or irrational, unknown or even non-existent": In re T (Adult: Refusal of Treatment) [1993] Fam 95 at 115 (Lord Donaldson of Lymington MR). Indeed, religious beliefs are internationally accepted as an aspect of an individual's fundamental autonomy with which the state cannot interfere and should not disregard: Universal Declaration of Human Rights (1948), Art 18; International Covenant on Civil and Political Rights (1966), Art 18; Convention relating to the Status of Refugees (1951), Art 1A(2). Such a motivation is likely to be one to which the Court will accord respect and weight, other things being equal.

92. However, to accord a religious belief weight is not to treat it as determinative: Re X – CA at [65].

Cancer onset and treatment

93. Prior to June 2023, AC was in good health.

94. In June and July 2023, whilst on a family holiday, AC began to have persistent left hip pain, particularly at night. AC’s mother took her to hospital in Queensland. After initial blood tests, x-rays and an MRI, a doctor at that hospital informed them that they (the hospital medical staff) thought that AC had cancer. Advice was given to attend a Sydney hospital. This led to the involvement of H and in particular Dr A, whom AC’s mother referred to as being very helpful, kind and reassuring.

95. Treatment was discussed and AC was admitted as an oncology patient at H. AC and her mother were able to stay at a nearby location.

96. The recommended treatment includes a schema of what is described as induction and consolidation therapy given in cycles, with each cycle being organised on a two-weekly basis and chemotherapy drugs being appropriately administered.

97. The treatment schema was adduced in evidence as Annexure ‘B’ to AC’s affidavit (AC Annexure B). The recommended treatment is the standard protocol for childhood cancer in Australia, and it seems also in North America and Canada, in the treatment of Ewing sarcoma: T 22.

98. The schema identifies five specific chemotherapy drugs which are used.

99. The first day of each cycle is two weeks following the one before that. The drugs are not given for 14 days. Assuming the first cycle starts on a Monday, on the Monday and Tuesday there are 2 days of drugs and then, on the Monday two weeks from that (initial) Monday, the next cycle starts with 6 days of drugs: T 15-16. For the 6-day block, the patient is admitted as an in-patient to the hospital and connected to a drip continuously, and sleeps 5 or 6 nights in hospital: T 16.

100. Ordinarily there are 17 cycles of treatment. There are 6 cycles in an induction phase and 11 cycles in a consolidation phase: AC Annexure B; T 95. Dr A described the difference between induction and consolidation treatment in the following terms (T 21-22):

A. They are really leukemia words. Induction meant to reduce, a remission, meaning you can't see the leukemia any more. But the words have ended up in the management of other tumours. So the induction, you can just think of it as the initial phase of treatment hopefully to get the tumour a lot smaller, and consolidation is to sort of further eradicate whatever is left. But in this protocol they are not substantially different, they are pretty much identical with some minor tweaks, but the key thing is in this protocol is that induction is that period before you have this surgery or your radiotherapy and consolidation is that becomes after surgery, radiotherapy. …..

101. On 19 July 2023 an MRI was taken, and on 27 July 2023 a PET-CT was taken.

102. A PET scan involves injecting a radioactive form of glucose and then taking pictures an hour or two later. It shows the shape and location of cancer. Any cancers take up glucose very avidly and so they light up hot under the camera which tracks the radiation on the isotope: T 88. By and large, an aggressive or fast-growing cancer will show up more brightly on a PET scan. However, a PET scan only detects tumour deposits of a certain size, and will not obviously reveal persisting cancer below that size. Accordingly, even an aggressive cancer, if below a threshold of detectable size, will not show up on the scan: T 91-92.

103. An MRI, on the other hand, is more particularly about the shape, structure and anatomic details of the tumour as well as more sophisticated sequences that give some evidence as to the cellularity of the tumour, and is helpful in predicting whether it might be a more active tissue or not: T 88-89.

104. On or about 4 August 2023, the treatment commenced: T 15, 104. That was a Friday, and it is possible or perhaps likely that the treatment commenced on Monday 7 August 2023, but the precise timing matters not for the purposes of this judgment. AC had two of the 2-day block of drugs and two of the 6-day blocks: T 17. The fourth cycle of treatment occurred in the week commencing 18 September 2023. Radiotherapy had not been administered by the time that AC ceased treatment: T 72. The fifth cycle of treatment was due to commence on or about 2 or 3 October 2023. Radiotherapy, if given, is initiated concurrently with the first cycle of the consolidation phase. Thus, had AC not declined treatment, radiotherapy was scheduled to occur in early November 2023, along with the first of the consolidation cycles: T 95.

Scan results

105. On 25 September 2023, AC underwent an MRI of the pelvis. On the hearing, a copy of the medical imaging report of a senior paediatric radiologist MBB physician, and the radiologist for H’s bone tumour program, (Dr E) was tendered (Exhibit H1).

106. At or shortly after that time, Dr A informed the defendants that, just because the cancer was not able to be readily detected on the scans, that does not mean that it is gone, as the scans can only detect to a certain size: Mother’s Affidavit [43]. Dr A explained to AC that, in his opinion, the cancer was not cured and she still needed more treatment: T 104-105.

107. There are limitations on what can be gleaned from a scan. The only way to be sure which of the residual areas of abnormal tissue contain cancer and prove it would be to surgically remove it or take a biopsy and analyse it. However, even that would be fraught with complexity because a microscopic disease in the midst of a dying area of another tumour is a “very tricky thing” (difficult or problematic) for a pathologist: T 89, also T 14.

108. Dr A viewed the MRI scan himself and had regard to the report of Dr E. Dr A was cross-examined regarding the scan and Exhibit H1.

109. The scan revealed what Dr A described as a spectacular decrease in the size of the Ewing sarcoma tumour in the pelvis, and that the lung nodules were no longer visible: Dr A’s Affidavit [19], [26]; see also T 13, 89-90, 98.

110. However, Dr A has not encountered any circumstances where Ewing sarcoma has been cured after only four cycles of chemotherapy and without either surgery or radiotherapy as well: T 90.

111. Dr A was cross-examined at length regarding the details of the MRI scan. He stated that certain of the abnormal tissue structures that can be seen on the MRI scan contain persisting cancer: Dr A’s Affidavit [26]; T 90.

112. Further, Dr A indicated that there is persisting microscopic amounts of cancer, being minimal residual disease which does not obviously disclose on a PET scan and MRI scan, that would be the source of the tumour regrowth. In that sense, his prediction that the cancer is going to grow back is not solely based on any particular indication on the MRI report: T 94.

113. Dr A’s cross-examination did not demonstrate that his opinion was unreliable or that his assessment was materially flawed. Indeed, Mr Clifton submitted that Dr A is a very frank and reliable witness: T 134.

114. Lest there be any doubt about it, I expressly questioned Dr A regarding his opinion and he confirmed that, based on the totality of his experience, qualifications and overall treatment of AC, she “absolutely, definitely” still had cancer and without further treatment it would regrow. That was the position both as at the time of his initial discussions with AC and the present: T 106.

115. Ms Shea did not dispute that I should proceed on the basis that the medical evidence, at least on the balance of probabilities, suggests that AC currently has cancer: T 119.

116. I find that, in all the circumstances, Dr A’s evidence that the bone cancer persists in AC is credible and reliable evidence.

Decision to decline further treatment

117. As stated above, on or about 2 or 3 October 2023, AC was due to recommence treatment.

118. On or about 4 October 2023, AC informed Dr A and associated medical professionals of her decision not to proceed with any further treatment of her Ewing sarcoma. AC indicated to Dr A and the associated medical staff that the basis of her decision at that stage was her belief that she no longer had cancer and that the cancer would not return.

119. Dr A informed AC at that time that:

1. there was 100% likelihood of the tumour progressing over the next several months to 1 to 2 years;

2. if the tumour regrowth occurred, the tumour would likely be resistant to further treatment; and

3. he predicted that, without further treatment, the cancer would relapse, her disease would be incurable and that she would die.

120. There is a uniqueness to Dr A predicting the likely outcome for AC if she has no further treatment. That is because there is no data (or, perhaps, readily known data) dealing with a situation in which a patient has declined further treatment so early into the treatment cycle. Dr A has had to rely upon an educated estimate in opining on the likelihood of progression of the cancer, regrowth and likely outcome: T 92. Nonetheless, Dr A confirmed the evidence regarding his expectation during the hearing: T 92, 98.

121. Following the 4 October 2023 consultation, it was decided that AC would return home for a week and that a telehealth appointment would be held to discuss further treatment.

122. AC indicates that, since she was diagnosed with cancer, her family, friends and she have been praying for a miracle.

123. She stated in her affidavit evidence (at [50]-[51]):

… When the scans came back clear, I remember the doctors telling me they were not expecting not to be able to see it on the scans.

I know it might be hard for other people to understand, but in my mind, the only way to explain these results was that they were in answer to our prayers and a complete healing miracle from God.

124. AC’s father gave evidence that AC had made to him and her mother statements to the following effect (Father’s Affidavit [27]-[28]):

I do not want to continue with chemotherapy because I believe I no longer have cancer due to the miracle that has taken place.

…

I believe that God has healed me. I don’t require any further treatment.

125. The parents have supported AC in her decision.

126. AC’s position remains the same; she does not wish to have the recommended treatment because she believes she has been cured of the cancer: T 109. Specifically, AC believes that she has been completely cured of the cancer, such that there are not even microscopic elements or traces of cancer remaining in her body: T 111-112, 119-120.

Subsequent events

127. On 12 October 2023, there was a further consultation held with Dr A, AC, the parents, an oncology clinical nurse consultant and a social worker: Dr A’s Affidavit [16]. Dr A reiterated his views.

127. Dr A communicated with AC’s general practitioner (Dr F) regarding AC’s position and expressed his views to Dr F.

128. On 2 November 2023, Dr A wrote to Professor B seeking his opinion in relation to AC, and also wrote to Dr C requesting he undertake an assessment of AC in relation to her competency to make decisions regarding her treatment: Dr A’s Affidavit [21]-[23].

129. In November 2023, Dr A referred AC to see Dr C.

130. On 13 November 2023, Dr C saw and interviewed both AC and the mother separately and also further together: Dr C Report [1]. On 14 November 2023, Dr C had a further brief telephone conversation with both AC and her mother. On 15 November 2023, Dr C provided the Dr C Report.

131. On or about 7 December 2023, a PET scan was taken and Dr A met with the defendants and two other associated medical professionals: Dr A’s Affidavit [25]. He discussed the results of the scan. The scan continued to show no areas of abnormal uptake. However, Dr A reiterated this did not mean that all of the cancer was gone, but rather that there was not any deposit of cancer big enough and avid enough to show up on a PET scan. He reminded them that the last MRI scan still showed abnormal areas of tissue, which he considered to be tumour: Dr A’s Affidavit [26] and Annexure H. He also discussed with them the Dr C Report: Dr A’s Affidavit [27].

132. Dr A discussed with the defendants the opinion of Professor B and his concurrence with Dr A’s analysis that, with completion of the recommended treatment, it was considered that AC had around 50% chance of permanent cure, but the absence of further treatment would highly likely result in AC’s death: Dr A’s Affidavit [28]. He strongly recommended against a decision of refusing further treatment. Notwithstanding that, the defendants informed Dr A that AC’s decision was to continue to refuse treatment.

133. On 14 December 2023, Dr A had a Zoom consultation with the defendants: Dr A’s Affidavit [30]-[31]. During the consultation, AC informed Dr A that:

1. she did not wish to proceed with any further treatment on the basis that God had cured her cancer;

2. the letter from Professor B was consistent with advice Dr A had already provided to her; and

3. if future scans showed any relapse she would expect to undergo further treatment.

135. During the consultation, Dr A reiterated to the defendants his view that relapse of the cancer was inevitable, it would be difficult to treat and AC would probably not survive: Dr A’s Affidavit [32]. The defendants confirmed they understood this. Dr A encouraged AC to reconsider her decision over the Christmas period and to speak with her Church pastor. He also informed the defendants that it was likely that an application would be made to the Court in relation to AC’s decision to refuse treatment.

Nature of treatment

136. The future recommended treatment would include 10-13 more cycles of chemotherapy as well as radiotherapy to the primary pelvic tumour and to the lungs: Dr A’s Affidavit [36].

137. The radiotherapy would likely need to be given 5 days per week for 6 weeks: Dr A’s Affidavit [41].

138. In addition to the anti-cancer treatment, AC would ordinarily have a number of supportive care treatments to help her handle the chemotherapy: T 95.

139. Ms Shea cross-examined Dr A as to the nature of treatment if AC were to resume treatment: T 19-20, 22-24. Dr A gave detailed evidence in this regard. Dr A was further cross-examined regarding the specific chemotherapy drugs Vincristine, Cyclophosphamide (1200mg), Ifosfamide, Etoposide and Doxorubicin. He gave detailed evidence regarding their effects: T 67-71. Dr A also gave detailed evidence of the effects of radiotherapy: T 72-75.

140. Evidently, choices regarding specific treatment would obviously need to be sensitive to the timing of any regrowth: T 98.

Impacts of the treatment

141. AC herself gives evidence of the effects of her treatment so far. At the time, she felt homesick, overwhelmed and isolated while being away from her home, family and friends. Nonetheless, AC’s mother was with her for almost all of the time while she was receiving treatment.

142. AC found the loss of hair during the chemotherapy treatment “really hard”. During the four cycles of the chemotherapy she was nauseous. She vomited at times and her medication was adjusted to attempt to moderate the effects of that, after which her vomiting abated to some degree. Nonetheless, she felt sick a lot thereafter. She also suffered constipation.

143. AC spoke of the effects of the treatment noting that she felt “pretty exhausted both physically and mentally”. She felt like she was unfit, tired and sometimes could not catch her breath, which she contrasted to her normally being “really active”. Her sense of taste and smell was also affected, which the doctors told her was a normal side-effect of the treatment.

144. The evidence disclosed that the recommended treatment, if authorised, would have various physical, psychological and social effects for AC.

145. Administration of chemotherapy would include lengthy periods of hospitalisation for AC, removing her from her local community.

146. In the event that AC was required have treatment against her will, AC also gave evidence regarding the loss of her autonomy that would involve.

147. AC’s mother was cross-examined and I accept that AC’s treatment thus far has had effects which have been difficult for the family as a whole and have had some degree of financial impact, although the precise extent of any such impact was not pursued in cross-examination: T 113-114.

Physical effects

148. The physical effects of the chemotherapy, if further administered, include (Dr A’s Affidavit [39]):

1. nausea and vomiting which H would seek to control with medication;

2. drop in blood counts requiring transfusions with blood products;

3. hair loss until the cessation of the chemotherapy;

4. the potential for mouth ulcers, constipation and diarrhoea;

5. difficulty in maintaining AC’s nutritional state, resulting in general loss of physical strength and conditioning; and

6. the need for a central venous line to be in place during the treatment to deliver the chemotherapy.

149. Each of the medications have their own potential side effects: T 67.

150. There is a risk of spontaneous infection when the white cell count is low and Dr A, during cross-examination, identified this as being the biggest risk of the recommended treatment: T 69.

151. Dr A gave particular details of the range of possible risks of infection which might arise, which could include anything from a simple fever, fungal infections that need prolonged treatment with ‘obscure’ anti‑fungal drugs, encephalopathies through to full on septicaemia, florid pneumonia and intensive care on life support systems: T 67, 69.

152. The radiotherapy treatments will involve redness of the skin, inflammation of the intestines with possible abdominal pain and diarrhoea: Dr A’s Affidavit [41]. These side-effects and the risks involved were explained by Dr A: T 73.

Psychological effects

153. It is clear that the treatment program, if ordered, would represent a massive disruption to AC’s normal life at a time when teenagers are forming relationships and friendships, and focusing on school and their social life. There will be multiple absences from home, school, friends, and in this case, from AC’s church community. The impact is greater having regard to the distance of AC’s family home from the hospital, which affects the extent to which AC’s family and friends can visit her: T 78-79.

154. The nature of the treatment and associated toxicities is enormously draining and wears patients down significantly.

155. The precise nature of the treatment is not particularly unique to AC. There are any number of children, adolescents and young adults treated within H’s program, who go through very similar or still more intensive treatment who have the same experience: T 79.

156. What would make it unique for AC is that those other patients undertake the treatment voluntarily and, if treatment were ordered in AC’s case, it would be against her will in a context in which she had a genuine belief that it was not necessary. That would add to her trauma: T 79-80, 82-83. Dr A acknowledged that the fact that AC’s parents support her in her decision would also make it difficult for AC to adjust and accept a decision that treatment be undertaken: T 84.

157. Dr A has encountered instances where a patient declines treatment late in the course of a disease after primary treatment, and where there has been a relapse. However, he struggled to think of an occasion where someone of AC’s age has declined the primary therapy when it would be given with curative intent: T 81.

158. Whilst Dr A described AC’s decision as “one of the most catastrophically bad decisions I've ever seen” and would not be enthusiastic about treating AC against her will, there is no suggestion that he would be anything other than willing to administer the recommended treatment if ordered: T 86. Rather, Dr A confirmed that if AC and her family were still willing for him to be the treating doctor, he would do his absolute best to provide the best possible treatment under the circumstances: T 106.

Attitude to the recommended treatment

159. Since making the decision to stop having treatment, AC has organised to have PET, CT and MRI scans every 3 months in Sydney.

160. AC has another scan booked at the end of February 2024. She indicated in her affidavit:

45. If the decision was made that I had to treatment against my wishes, I wouldn’t want to do it and wouldn’t be happy about it, but I know that if the Court ordered it, I would have to do it. It would be hard though to recommence treatment with the same health professionals who I have just been in a Court against.

…

47.… If I saw on the scans that the cancer had grown back, I’d most likely start treatment again.

161. Both of AC’s parents have expressed opinions about the detrimental effects it might have on AC if she were to be required to undergo the recommended treatment.

162. However, AC’s parents indicate that they will support AC in whatever decision she decides to make, including if she were to change her mind and decide to have the recommended treatment: Mother’s Affidavit [46]; Father’s Affidavit [30], [37].

163. Whilst I accept that, if ordered to undergo further treatment, it would be hard in some respects for AC to recommence treatment “with the same health professionals who [she has] just been in a Court against”, I did not detect any sense of antipathy from the defendants’ evidence and cross-examination for Dr A and the associated medical professionals.

164. AC’s mother described Dr A as very helpful, kind and reassuring. AC’s father gave evidence to the effect that, from what AC and the mother had told him, and his limited experience with them, the medical staff and Dr A were very professional and caring people.

165. In cross-examination, AC confirmed her affidavit evidence that, if the cancer did come back, she would most likely re-engage with medical treatment at that point: T 110.

166. Dr A described AC as “a grounded, intelligent, reasonable, charming, engaging, courteous young lady” and predicted, if treatment were to be ordered, that AC would cooperate in good will: T 82.

167. Nonetheless, Dr A acknowledged that undergoing treatment against one’s will is substantially more draining, and noted that, obviously, getting through the recommended treatment program in such a circumstance would require a high level of cooperation from all concerned: T 82.

168. Dr A accepted that the more psychologically and emotionally drained the patient is, the less their capacity is to tolerate the physical impacts of the treatment. Nonetheless, he observed that AC is a very resilient person, with “a lot of resources of her own, and a lot of supports locally”: T 82-83.

169. AC confirmed that if the Court ordered her to undergo treatment, she would have the treatment: T 112. AC’s mother confirmed, accepting that treatment would not be AC’s ideal nor her ideal, she would nonetheless assist AC in undertaking treatment if it was ordered: T 115.

Does AC have capacity to make a decision?

Submissions

170. In commencing the proceedings, H did so in a context in which it is concerned that AC may not have capacity to refuse consent to the recommended treatment, on the basis that she does not have a sufficient understanding to give a valid consent: HOS [9], [24]. Ms Kumar indicated that that concern remained after the evidence in the proceedings, including cross examination, had been completed: T 118.

171. H bases this submission on the available expert evidence: HOS [27]. Ms Kumar referred to the following matters in respect of the submission (at HOS [25]):

1. The unequivocal medical evidence that:

1. the cancer has not been cured and will inevitably return;

2. the poor prognosis if AC does not undergo the recommended treatment such that death from the cancer is inevitable;

3. the (revised) 40% to 45% chance of survival if AC has the recommended treatment; and

4. the distressing and painful death which will ensue if the cancer progresses, which is inevitable without the recommended treatment.

2. The basis upon which AC has made her decision to refuse the recommended treatment. Namely, that she has been cured of cancer and the cancer will not return, which is inconsistent with the medical evidence.

3. AC’s declaration to Dr C that she does not want to die, a result which is inevitable if the recommended treatment is not provided.

4. Dr C’s conclusion that AC cannot appropriately weigh the risks and benefits of treatment as against non-treatment, given her religious belief that she has been cured.

5. AC’s position that she would “probably” re-engage with treatment if the cancer returns.

6. The mother’s view that AC would re-engage with treatment if the cancer returns.

7. The significance of AC’s decision not to undergo the recommended treatment having regard to the unequivocal medical evidence as against a 40% to 45% chance of cure if the recommended treatment is given.

172. Ms Shea submitted that guidance as to the meaning of ‘Gillick competence’, and the criteria by which it is to be assessed, can be found in subsequent cases in Australia, the UK and other jurisdictions: ACOS [7]-[13]; T 123. She referred to comments of Cobb J in Re S (Child as parent: Adoption: Consent) [2018] 2 WLR 1029; [2017] EWHC 2729 (Fam) at [60] and [62], and Dame Victoria Sharp P, Lord Justice Lewis and Lieven J in Bell v The Tavistock and Portman NHS Foundations Trust [2020] EWHC 3274 (Admin); [2021] PTSR 593 at [130]–[131]. Although, I note that decision of the Divisional Court of the Queen’s Bench Division was reversed by the Court of Appeal in R (Bell) v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363; [2022] PTSR 544 and permission to appeal to the Supreme Court from the decision of the Court of Appeal was refused: R (Bell) v Tavistock and Portman NHS Foundation Trust [2022] PTSR 931.

173. Ms Shea also referred to the judgment of Re Imogen (No 6) at [184], in which Watts J adopted eight criteria in assessing whether Imogen, aged 16 years and 8 months, was ‘Gillick competent’. I note that in Re A (2022) 11 QR 1; [2022] QSC 159 (a case in which a mother sought orders on behalf of a child for the administration of gender affirming hormone treatment, known as stage 2 treatment, for gender dysphoria) Boddice J (as his Honour then was) cast doubt on whether Re Imogen(No 6) correctly states the law. His Honour stated:

14. An issue that must be considered first by the Court is whether the child is Gillick competent to consent to stage 2 treatment.

15. That issue is properly to be considered first because if the child is Gillick competent, then subject to some obiter dicta in a case to which I will refer shortly, that really should be the end of the matter. It is then a situation where the child, if giving consent to that treatment, is to receive the treatment notwithstanding the views of one or more of the child’s parents.

16. Having considered the material, I am satisfied the child is Gillick competent. It is apparent from the material that the child has indicated, over a considerable period of time, a consistent view that the child is male. The child has reported from a relatively young age of never feeling like a girl and of always feeling different.

…

24. Once it is concluded that the child is Gillick competent, the question must be asked why it is that a child who is almost 17 years of age, is Gillick competent and is firm in the view of what treatment they would like, should be denied the opportunity to do so without the consent of both parents. Such a conclusion would be inconsistent with the human rights of the child and a recognition of the importance of Gillick competence and its effect as a matter of law.

25. An issue which it is not necessary to formally decide but which must be considered by the Court, is a matter raised in Re Imogen (No 6) (2020) 61 Fam LR 344 when considering the earlier decision of Re Jamie, (2013) 278 FLR 155 in which the then Chief Justice of the Family Court expressed views in relation to the approval of treatment for gender dysphoria.

26. In Re Jamie, the then Chief Justice expressed a conclusion that a child who is Gillick competent could consent to treatment and that no Court authorisation was required, absent any controversy. The controversy that was then referred to was a dispute between the parents regarding the treatment. In those circumstances, there was a need for authorisation. That interpretation was followed more recently in Re Imogen (No 6).

27. If it were necessary to decide, I would find that both Re Jamie and, as a consequence, Re Imogen (No 6), do not correctly state the law. In those circumstances, I would decline to follow those cases. However, as I consider it is correct to view the conclusions expressed by the Chief Justice as obiter dicta, it is not necessary to determine whether in fact the decision was wrong in law.

174. Ms Shea also referred to AC v Manitoba at [96] as follows:

96. As all of this demonstrates, the evolutionary and contextual character of maturity makes it difficult to define, let alone definitively identify. Yet the right of mature adolescents not to be unfairly deprived of their medical decision-making autonomy means that the assessment must be undertaken with respect and rigour. The following factors may be of assistance:

- What is the nature, purpose and utility of the recommended treatment?

- What are the risks and benefits?

- Does the adolescent demonstrate the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences?

- Is there reason to believe that the adolescent’s views are stable and a true reflection of his or her core values and beliefs?

- What is the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations on his or her ability to exercise independent judgment?

- Are there any existing emotional or psychiatric vulnerabilities?

- Does the adolescent’s illness or condition have an impact on his or her decision-making ability?

- Is there any relevant information from adults who know the adolescent, like teachers or doctors?

This list is not intended to represent a formulaic approach. Its objective is to assist courts in assessing the extent to which a child’s wishes reflect true, stable and independent choices.

175. Ms Shea submitted that AC has ‘Gillick competence’ and capacity to make her own decision about the recommended treatment, in the sense of having the ability to make a decision because she has sufficient understanding and intelligence to do so, in the sense discussed in Marion’s Case: T 119, 120, 123. Mr Clifton’s submissions were to like effect: T 134-135.

176. Specifically, Ms Shea rejected any notion that how a young person (in this case AC) weighs the advantages or disadvantages and various factors or considerations, and what she decides, are relevant criteria to capacity, as is whether the decision is wise or not: T 125. She submitted that Dr C had impermissibly had regard to such a (wisdom) consideration: T 119. Ms Shea contended that the fact that AC holds a certain belief does not mean that she is incapable of making a decision, nor mean that she does not understand the information she has been given. The two things are not mutually exclusive: T 126.

175. Mr Clifton was also critical of Dr C and his application of ‘Gillick competence’: T 135.

Determination

178. A considerable part of the evidence adduced on the hearing was directed to AC’s capacity to make a decision.

179. In some circumstances involving decisions regarding whether someone will undertake or refuse medical treatment, the medical evidence may be contestable, in the sense that there are competing views of medical professionals or experts regarding whether the patient is suffering from disease, disease is still present or the nature or advisability of certain treatment.

180. In this case, the medical evidence is clearly to the effect that the cancer subsists in AC’s body.

181. Dr C stated in reference to the results tabulated in the decision table (Dr C Report [40], [42]):

… [The two related themes underpinning both AC’s decision to refuse treatment and her perceptions of costs if she does continue treatment] are her strong religious belief she is the recipient of a miracle, and her desire to return to her normal life and avoid the complications treatment will bring, especially infertility. Interestingly, her understanding of the evidence base presented to her by her medical team does not earn a significant rating: the evidence is discounted as a reason for her to continue in treatment in preference to her overwhelming belief in the occurrence of a miracle.

182. Mr D agreed with that comment: Exhibit P1 [38].

183. Mr D agreed that AC’s “religious belief system prevents her from appropriately weighing the medical information which she continues to discount against the belief she responded favourably to miraculous intervention and the beneficence of God”: Exhibit P1 [51].

184. There is no need for me to critique Dr C’s evidence. Ultimately, the importance of the evidence of Dr C and Mr D was not, per se, their own understanding of ‘Gillick competence’, but rather their record of discussions with AC and evidence as to what she said about what she had experienced, thought, believed and her faith. Through examination of the Dr C Report and his cross-examination, I have been able to distinguish between what is effectively the factual basis for the report recording AC’s evidence and the opinion of Dr C. In any event, it is obvious (as I note below) that there was quite a degree of common ground as between Dr C and Mr D, both as to their factual recording of what AC reported to them and (to a degree) of their opinions.

185. AC presents as a mature and intelligent young person. She is completing a compressed year 11 and 12 HSC programme which she commenced in November 2023.

186. It is clear from her own evidence that she is an avid reader. Through school and participation in church youth group discussions, she has had the opportunity to discuss aspects of learning on topics of “relationships, priorities and honesty”.

187. AC’s school reports were adduced in evidence and clearly show that she is a capable, confident, mature and thoughtful young person.

188. AC’s father describes AC as a “born leader”. He has seen her on many occasions take on responsibilities beyond her years. In his experience, AC demonstrates critical thinking in all aspects of her life. He describes her as being “very level-headed and is a young woman of good, sound judgment and maturity”: Father’s Affidavit [19].

189. Dr C used a decision matrix which he described as a form of cost-benefit analysis, which AC did not fully comprehend in those terms but did understand easily in terms of descriptions of the “upside” and “downside” of having treatment or refusing treatment: Dr C Report [39]. It is clear that AC was able to engage in that process and have regard to a number of different considerations, not merely her religious beliefs.

190. The decision table (for want of better description) was prepared in the context of a collaborative exercise between AC and Dr C: T 30. The matters mentioned in the table and the weightings given to them were included by reference to AC’s responses, rather than being matters suggested by Dr C: T 30-31. Dr C accepted that the factors included in the table, from his perspective, appeared to be sensible and reasonable considerations for AC to weigh up: T 30.

191. On a number of matters there was considerable agreement as between Dr C and Mr D.

192. Mr D was not in a position to undertake a psychometric assessment of AC of the sort summarised in the Dr C Report. Based on the test results and AC’s presentation on interview and assessment with him, Mr D concurred with Dr C’s conclusions and noted AC presents as a mature young person who has been faced with a significant medical crisis: Exhibit P1 [40].

193. Mr D agreed with Dr C that AC has sufficient understanding and intelligence to process the medical information she has been provided with and does not present with any cognitive deficiencies or impediments to her decision making: Exhibit P1 [43].

194. Mr D commented upon neurobiological differences between adolescents and adults and stated as follows:

45. Neurobiological differences between adolescents and adults should form how society treats young people. Whether such differences are real is not open to debate (Laurence Steinberg. Commentary: A Behavioural Scientist Looks at the Science of Adolescent Brain Development. Brain Cogn. 2010 Feb: 72(1), 160-164).

46. Whereas there are some universal elements in adolescent brain development, there are important individual differences. The process of brain maturation in adolescents unfolds within an environmental context that influences the course of neurodevelopment and moderates the expression and emotion, behaviour and cognitions.

47. AC is currently in the middle to later stage of neuro cortical development, where developmental changes can take place. As things stand, AC has approximately six more years before her brain is fully developed.

48. Adolescence is a developmental period characterised by sub-optimal decisions/actions. Research suggests differential development of bottom-up limbic systems, implicated in incentive and emotional processing, to top-down control systems during adolescence, as compared to childhood and adulthood.

49. Nevertheless, I am of the belief AC’s core belief system based in her faith and religious beliefs are firmly established and unlikely to change and will remain well into adulthood.

195. Mr D concluded that AC has sufficient understanding and intelligence to enable her to understand fully what is proposed in the medical treatment recommended by Dr A, why he has recommended it, and to weigh the advantages and disadvantages of the recommended treatment: Exhibit P1 [55]-[56].

196. Mr D, in a supplementary report, clarified the above matters. He stated (Exhibit P2 page 2):

Paragraph 49 and preceding paragraphs refers to the difference between the adolescent brain to that of an adult relevant in appreciating how adolescents make decisions. AC, allowing for neurobiological and neurocortical stage of development is, in my opinion, competent to make the decision she made not to proceed with the recommended treatment. She presents with a level of maturity and consistency in her decision making process, which I do not believe will alter as she achieves final neurocortical development.

197. Having considered all of the material and submissions, I accept that AC has the ability to make decisions, including the ability to make a decision regarding refusal of the recommended treatment or continuation of the treatment.

Should treatment be ordered?

Submissions

198. Ms Kumar did not, in chief, advance submissions to the effect that the Court should intervene in the event that it found that AC was ‘Gillick competent’.

199. Ms Kumar did address the question of whether it was necessary for AC to be made a ward of the Court: HOS [15], citing Re Paul [2008] NSWSC 960 at [4]-[5], Re Bernard [2009] NSWSC 11 at [20]-[21] and Re Jules at [9]-[21]. However, she did not seek such an order: HOS [16]. Further, neither Ms Shea nor Mr Clifton submitted that, in the event that I determined that AC should undergo treatment, it was necessary for me to make her a ward of the Court.

200. Ms Shea submitted that I should find that it is not in AC’s best interest “to have treatment imposed on her against her will, and against the will of her parents”: T 126.

201. In support of that submission, Ms Shea advanced the following considerations (T 126-133):

1. AC is an intelligent, articulate and mature young woman and, in 12 months’ time, will be 18 and there will be no question whatsoever about her competence;

2. this is a case where the “principles of welfare and autonomy do effectively merge”. It is ultimately in AC’s best interests to respect and promote her right to autonomy, and it would be contrary to AC’s best interests to override her autonomy and to impose treatment on her against her will (referencing AC v Manitoba at [84], [87], [88]);

3. it is appropriate to have regard to the provisions of the United Nations’ Convention on the Rights of the Child (CROC), citing Re Thomas at [36]-[37]. Specifically, Ms Shea referred to Articles 12 (that State parties shall assure to a child who is capable of forming his or her own views the right to express those views freely and for the views of the child to be given due weight in accordance with the age and maturity of the child), 14 (freedom of thought, conscience and religion) and 16 (the right to protection from arbitrary or unlawful interference with a child’s privacy);

4. certain legislative provisions endorse the CROC. Ms Shea noted that Brereton J regarded as important in Re Thomas (at [37]) that, insofar as the parens patriae jurisdiction overlaps the welfare jurisdiction of the Family Court of Australia, it is material that Family Law Act1975 (Cth), s 43(c), provides that the Court, in the exercise of its jurisdiction, must have regard to the need to protect the rights of children and to promote their welfare. Ms Shea submitted that applies here a fortiori now that an additional object of Part VII of the Family Law Act1975 (Cth) (dealing with Children) is to give effect to the Convention on the Rights of the Child “done at New York on 20 November 1989”: see s 60B(4);

5. AC has a fundamental human right to bodily integrity, which whilst not specifically referred to in Article 16 CROC, is part of common law as reflected in Marion’s Case at 265-266 per Brennan J;

6. AC, if ordered to have treatment, will have risks of infection and infertility, in each case as discussed by Dr A in his affidavit and specifically his evidence in cross-examination (infection: T 67, 69; and infertility: T 69-70, 74-76, 101-102);

7. permanent cure is not guaranteed, citing the revised indication by Dr A of a 40% to 45% chance of permanent cure if the recommended treatment is given;

8. AC would have to endure a loss of (or at least reduced) good quality of life if the treatment is undergone, in circumstances where the treatment may potentially be futile and she does not believe it is necessary: T 83; and

9. imposing the treatment on AC is detrimental insofar as she is concerned about, and sensitive to, the adverse impacts on her parents and family of her undergoing treatment.

202. Mr Clifton endorsed the submissions of Ms Shea: T 134. He submitted that Dr A’s affidavit evidence appeared to be that the chemotherapy drugs would likely be ineffective if there was delayed treatment, however, according to Mr Clifton, Dr A then qualified this position in cross-examination in that he was not nearly as sure that the chemotherapy, if delayed, would be any less effective: T 134, 136.

203. I am not entirely sure that there was necessarily any qualification in the evidence of Dr A. Dr A’s affidavit evidence acknowledged that regrowth might occur in a context where the clone cancer cells are resistant to the chemotherapy drugs already used, and acknowledged that if they were resistant then there would be limited options for drug treatment that could be effective: Dr A’s Affidavit at [46]-[47]. However, assuming there was regrowth, the evidence of Dr A in cross-examination (at T 97-98) was more particularly focused upon and directed to what choices would be made regarding use of the existing drugs at that point of time, in a context where the regrowth might be because the cancer was resistant to the initial drugs used.

204. In any event, if no treatment is ordered and one were to wait and see what happens regarding regrowth, clearly choices as to treatment depend upon timing of any regrowth of the tumour and analysis of AC’s situation at that point of time: e.g. T 98. That is a matter essentially for clinical judgment.

205. Mr Clifton emphasised the centrality of AC’s religious beliefs to her and the importance of those beliefs being part of her decision-making, and her right to autonomy in that regard: T 136-137.

206. In particular, Mr Clifton submitted that, based on Mr D’s evidence that he believes AC’s core belief system is firmly established and unlikely to change, and will remain well into adulthood, the consequence is that there is no perceivable or likely difference between the decision AC has now made and the decision she would make in the same circumstances in a year's time (when she is 18) or after: T 138. In light of that, Mr Clifton submitted that the Court should not intervene to order treatment: T 139.

207. Ms Kumar, in reply, submitted that the position which AC has adopted, regarding being completely cured, is contrary to the medical evidence, and is a significant matter to which the Court should have regard in determining whether to order treatment: T 140.

Determination

208. According to Dr A, AC enjoys good quality of life presently, and she looks fit and healthy: T 83. No one suggested that AC wants to die, rather the evidence is to the opposite effect: T 110, 139, 142

209. Ms Shea accepted that AC’s belief that she has been completely cured of the cancer is contrary to the medical evidence: T 119. She accepted that there was no contestable view of the medical evidence that AC’s body is free of cancer: T 121.

210. Ms Shea further acknowledged that a finding that AC has capacity would not necessarily be determinative of the question as to whether treatment is in her best interests, and accepted that the Court in the exercise of the parens patriae jurisdiction, in determining whether ongoing treatment is in AC’s best interests, is engaged in a form of evaluative exercise: T 120.

211. Neither Dr C nor Mr D hold the view that AC’s decision is based on current stress associated with the treatment. Dr C stated (at [72]) regarding the decision that:

… [t]his is not a function of lack of maturity per se, but of the intensity of her religious belief. She is supported in this belief by her family’s recent experience with [xxxx]. I do not believe that her decision is made on the basis of some kind of rejection of treatment because of a current stress associated with the treatment. I believe this has been a reflective process for her and for her family and not one that is simply in response to the pain or suffering associated with current treatment or concern about future side effects, despite [AC]’s major concern treatment may render her unable to conceive children.

212. Mr D agreed with that assessment: Exhibit P1 [56]; Exhibit P2 page 2.

213. Bearing upon the questions of autonomy, Dr C stated (at [73]):

The family will be traumatised by any attempt to coerce treatment through legal means, noting that any relevant court action will likely lead to delay in implementing treatment and [AC] is only 14 months off attaining adult status.

214. Mr D did not expressly agree with that. He was uncertain if AC and the family would be traumatised by any attempt to coerce treatment through legal means. Rather, he emphasised that, if the Court elects to “override AC’s independence and autonomy, and force treatment, it will impact on her strongly held belief system, which has its basis in religion and faith, and challenge her view that she is cured by way of a miracle”: Exhibit P1 [58].

215. Impacting beliefs is not the same as quenching underlying faith. There is evidence of AC addressing the event of cancer “returning”.

216. Specifically, AC informed Dr C that, if the cancer did return, it would be disappointing, as it is not what she expects, but it would not change her faith in God and belief that miracles can occur: Dr C Report [37].

217. Further, AC when asked by Mr D to project ahead and think about her life from the position of a 23 or 24 year old, replied “if the cancer did come back I probably would not be that happy with myself”: Exhibit P1 [37], [53]. It was clarified in cross-examination that, by this, AC meant that she would probably regret her decision if the cancer did happen to come back: T 111. However, AC (as noted earlier in these reasons) told Mr D that, if it were the case, it would represent God’s will, and her belief of death is that she would be returned to Jesus, her “lord and saviour”, and she would have “eternal life in heaven”: Exhibit P1 [54].

218. At various stages Dr A has expressed views regarding AC’s chance of permanent cure. This included correspondence with Dr F on 12 October 2023.

219. As at 22 December 2023, Dr A opined that:

1. in the event AC underwent the recommended treatment, she would have a 50% chance of permanent cure of the Ewing sarcoma; and

2. without the treatment, she faces a near 100% chance that the Ewing sarcoma will recur which will be very hard to cure and almost certainly lead to her death: Dr A’s Affidavit [38], [46]; T 80.

220. It is generally very undesirable to have big breaks in chemotherapy treatment: T 96. In support of this position, Dr A made reference to a United States, Canadian and Australian study: T 96-97. Having regard to the present delay, and accepting that it is impossible to have any absolute confidence of precision in estimates, at least by reason of the lack of data dealing with the situation in which a patient has declined treatment so early, Dr A accepted that the chances of a permanent cure might now be in the order of 40% to 45%: T 96-97, 103. Dr A indicated that it was desirable that, if treatment were reinstituted, it be done prior to the end of January 2024: T 103.

221. It is clear that Dr A’s opinion had regard not merely to the scans in late September 2023, but also to the PET scan performed on or about 7 December 2023: Annexure H of Dr A’s Affidavit; T 103-104.

222. Whilst there is a possibility of second-line treatment proving effective, and it may be that new drugs will be discovered, the overwhelming majority of patients with Ewing sarcoma who have a relapse after standard treatment will go on to die from the disease: Dr A’s Affidavit [46].

223. In the case of AC, the area of regrowth may be in the region of the primary tumour around the pelvis, in the lungs or at another site such as the bony skeleton or elsewhere: Dr A’s Affidavit [47].

224. Part of the risk of regrowth is that the clone of cancer cells which grow back may be resistant to drugs already used: T 98. If the cancer was resistant to those drugs. then there would be very limited options (if any) for drug treatment to prove effective. Regrowth may occur if the initial limited cycles of chemotherapy drugs did not penetrate every component of the tumour and there is a “sanctuary site” of cells: T 98.

225. Ewing sarcoma is a highly malignant and aggressive cancer: Dr A’s Affidavit [36]; T 91. There are no alternative treatments available to the recommendations of chemotherapy and radiotherapy. It is possible that surgery to remove the primary pelvic tumour may be added. However, at least as at 22 December 2023, that was unlikely and in any event would not replace the need for radiotherapy or chemotherapy.

226. Irrespective of whether AC undergoes the recommended treatment or not, she will continue to require various investigations and scans to check for any sign of tumour regrowth.

227. In making a decision about declining treatment, I have no reason to doubt AC’s evidence that she has “thought a lot about the decision”. She has spoken with close family members, friends, relatives, teachers at her school and her Church pastor.

220. I have accepted that AC has the ability to make decisions, including the ability to make a decision regarding refusal of the recommended treatment or continuation of the treatment, and in that sense is to be regarded as being ‘Gillick competent’.

221. Ms Shea submitted that AC has not ignored the medical evidence, but rather, having capacity, has chosen to believe that she is free from cancer and so does not need the recommended treatment: T 121.

222. I have considered the entirety of the evidence, both in affidavit and oral form, and the written and oral submissions of counsel.

223. Having carefully and deeply considered all the circumstances of the case, and taken heed of steeped and undoubted caselaw that the Court should act cautiously in its exercise of the parens patriae jurisdiction, I came to the view that, notwithstanding the stance of the parties, I should authorise and direct that the recommended treatment be administered to AC.

224. My considerations included all the above matters and, in particular, the physical and psychological effects and social implications of the recommended treatment on AC. My considerations extended to, but were not limited by, the following:

1. The sanctity of life is an important consideration to be not merely accorded respect but appropriately weighed, as is the medical evidence, AC’s religious beliefs, AC’s autonomy of decision-making, and her right to bodily integrity.

2. Ordinarily, any physical contact to a person without consent (or threat of it) is unlawful, and there is a right in each person to bodily integrity and to choose what occurs with respect to his or her own person: Marion’s Case at 233 per the plurality and at 265-266 per Brennan J.

3. The effects of treatment on AC, or any cancer patient, cannot be underestimated. Dr A indicated in his affidavit evidence that AC tolerated the cycles of chemotherapy that she had undergone well: Dr A’s Affidavit [11]. During questioning about AC being able to tolerate the treatment, Dr A observed with stark and almost brutal reality (T 66):

A. When I say someone tolerates this chemotherapy “well”, we’re still talking shades of terrible here. It’s a terrible, horrendous ordeal, and - but this was at the better end of terribleness. Okay.

4. Dr A has indicated that AC was at the conclusion of the fourth cycle and had handled the treatment “quite well, had not developed terrible mouth ulcers or various other problems” (T 19) and so tolerated the cycles of chemotherapy at the better end of “terribleness”. In fact, she tolerated the terribleness “better than many”: T 71-72. He describes her as being quite resilient (T 82-83) and not overtly significantly distressed by the treatment thus far. That evidence was supported by the evidence of AC’s mother, who indicates that AC handled the whole process with maturity and, although she has been upset and frustrated at times, she has been calm throughout. Her mother expressly indicates that while AC did feel isolated and lonely being at the hospital away from home, she had not really seen a change in AC’s personality, habits or discipline: Mother’s Affidavit [47].

5. Because of the timing of AC’s refusal of further treatment, there is no certainty as to how she might handle the combination of chemotherapy and radiotherapy: T 72.

6. Accepting that the recommended treatment has (or is likely to have) the effects described above, AC has not indicated that she has found the treatment thus far, or expects any of the recommended treatment, to be intolerable in terms of pain or psychological distress.

7. Whilst frankly acknowledging the arduous nature of the recommended treatment, Dr A indicated the physical effects of the further chemotherapy treatment will be temporary during the treatment and he would expect a full recovery to occur after cessation of the treatment: Dr A’s Affidavit [40].

8. In the long term, and assuming survival from the cancer, the left-hand side of the pelvis will be weakened and will not return to normal due to a combination of the cancer and the radiotherapy: Dr A’s Affidavit [41].

9. There is a risk of arthritis and the possible need for orthopaedic intervention some decades from now: Dr A’s Affidavit [41].

10. H has already harvested some of AC’s ovarian tissue and cryopreserved it as a backup in the future if AC does develop infertility: Dr A’s Affidavit [42]. There may be some risk of infertility. The likely effects cannot be confidently predicted.

11. The chemotherapy proposed includes a drug with a modest risk of causing impaired cardiac function in subsequent decades: Dr A’s Affidavit [43(a)].

12. The chemotherapy and radiotherapy are both associated with a small risk of leading to a new, secondary malignancy in subsequent years or decades: Dr A’s Affidavit [43(b)].

13. Whilst I accept that AC will, if ordered to undergo treatment, experience some loss of the good quality of life that she is currently experiencing (which includes being able to enjoy the things that teenagers ordinarily enjoy such as friendships, school and, for AC, Church community), she confirmed that if the cancer did come back she would most likely re-engage with medical treatment at that point.

Costs

233. I discussed with counsel the question of costs. In considering the appropriate order, I had regard to the following principles.

234. Proceedings in the exercise of the protective jurisdiction are not adversarial in the way that ordinary civil litigation is. Because the welfare and interests of the protected person, or the person who is the subject of the jurisdiction, are paramount, the Court does not necessarily apply the principle that costs should follow the event. Rather, the Court determines the proper order for costs to be made in all the circumstances: Small v Phillips (No 3) [2020] NSWCA 24 (Small v Phillips (No 3)) at [2] per Brereton, McCallum JJA and Emmett AJA, citing Civil Procedure Act 2005 (NSW), s 98, Uniform Civil Procedure Rules 2005 (NSW), r 42.1 and Re K’s Statutory Will (2017) 96 NSWLR 69; [2017] NSWSC 1711 at [14]-[18] per Lindsay J.

235. Proceedings in the protective jurisdiction have a strong public interest element: Small v Phillips (No 3) at [2].

236. Proceedings, such as the present, invoking parens patriae relief have been recognised as raising important principles as to: the allocation of responsibility for life and individual autonomy, as between the state and its citizens; the significance of religious beliefs; and the scope and operation of fundamental human rights and freedoms: Re X - CA at [76] per Basten JA.

237. Further, family members of a protected person should not be burdened with an obligation to pay costs in circumstances where the imposition of such an obligation might have an adverse effect on relationships with, or care for, the protected person: Small v Phillips (No 3) at [2].

Conclusion

238. Ms Shea, whilst submitting that the making of a finding as to whether AC was and is ‘Gillick competent’ is relevant to the exercise of the parens patriae jurisdiction, accepted that it was not necessary to make a declaration regarding competency as distinct from making a finding: T 124-125.

239. The orders of the Court made on 19 January 2023 are as follows.

240. The Court:

1. Declares (in the Court's parens patriae jurisdiction or otherwise), that the responsible medical practitioners, nursing and other staff at H (“Hospital”) may lawfully carry out on AC the following medical treatment with such treatment to be provided under the care of Dr A, paediatric medical oncologist at the Hospital, subject to his clinical judgment, so far as is reasonably possible:

1. local therapy to the pelvis: surgery and/or radiotherapy;

2. whole lung radiation;

3. continuation of systemic chemotherapy as per Children’s Oncology Group treatment protocol AEWS1031; and

4. associated supportive care measures.

2. Grants liberty to any party to apply to Meek J or the Equity Duty Judge on 1 day’s notice for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, Order 1. 

3. Orders that there be no orders as to costs with the intent that each party bear his, her or its own costs.

4. Orders subject to Order 2 that the Summons is otherwise dismissed.

5. Orders that these orders be entered forthwith.

241. Consequent upon the listing on 1 February 2024, the Court additionally:

1. Grants leave to the parties to relist the matter on 2 days’ notice to the Associate to Meek J to make any application in relation to any alternative suppression and non-publication orders to those made by the Court on 22 December 2023.

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Endnote

Amendments

06 February 2024 - Coversheet - amended to improve print version

[87] - created citation as footnote

Decision last updated: 06 February 2024