H v OL - [2024] NSWSC 271

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: H v OL [2024] NSWSC 271
Hearing dates: 18 March 2024
Date of orders: 19 March 2024
Decision date: 19 March 2024
Jurisdiction: Equity
Before: Elkaim AJ
Decision:
1. The court declares, until further order, that the staff, employed or contracted to H may lawfully provide the medical, nursing, and other supportive treatment to OL in treatment of her acute lymphoblastic leukaemia.
2. The court notes that the hospital staff will engage with OL’s parents to ensure they are consulted throughout the treatment.
3. The matter is listed for mention on 14 June 2024.
4. All parties have liberty to restore on 48 hours’ notice to the other parties and to the court.

Catchwords:
CHILD WELFARE – Jurisdiction – Supreme Court of NSW – Parens patriae – 14 year old child diagnosed with Pre B Acute Lymphoblastic Leukemia – Where the child has a number of underlying health conditions – The Parents would prefer that there be no treatment for the Leukemia and the child be allowed to die at home so that the child may avoid the pain and suffering of the treatment – Hospital sought order authorising treatment – Order made for authorisation of treatment

Cases Cited:
DoCS v Y [1999] NSWSC 644
H v AC [2024] NSWSC 40
Minister for Health v AS [2004] 286
Re Ryder [2020] NSWSC 895

Texts Cited:
Furzer Crestani personal injury assessment handbook, online ed accessed 18 March 2024

Category: Principal judgment
Parties: H (Plaintiff)
OL (First Defendant)
The Mother (Second Defendant)
The Father (Third Defendant)
Representation:
Counsel:
Ms K Kumar (Plaintiff)
Mr P Guterres (First Defendant)
Ms E Lambert (Second Defendant)
Mr S Tierney (Third Defendant) (Solicitor)
Solicitors:
NSW Ministry of Health (Plaintiff)
Legal Aid (First Defendant)
Kathryn Renshaw Lawyers Pty Ltd (Second Defendant)
Ken Cush & Associates (Third Defendant)

File Number(s): 2024/94680

JUDGMENT

On 12 March 2024, Parker J made an order that the title of this matter is H v OL & Ors. H is a hospital in New South Wales. OL, the first defendant, is a female minor born in 2009. She is almost 15 years of age. The second defendant is OL’s mother. The third defendant is her father.
On 14 March 2024, Parker J made an order appointing a solicitor as the independent legal representative for OL. Counsel was briefed and submissions have been filed.
In the summons filed on 12 March 2024, H has requested this Court to exercise its parens patriae jurisdiction to enable H’s medical practitioners and staff to provide medical treatment to OL. The parens patriae jurisdiction dictates that the Court base its decision on the best interests of the child and on no other consideration.
Absent the proposed medical treatment, OL has a life expectancy of 2 to 4 weeks.
The order sought is opposed by the second and third defendants. They were separately represented but advocated the same result.
The independent legal representative supports the orders sought by H.…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading H v OL

Details

AGLC: H v OL [2024] NSWSC 271
Case: [2024] NSWSC 271
Decision Date: 19 March 2024

CaseChat Overview and Summary

In the matter of H v OL, the Supreme Court of New South Wales was asked to decide whether a hospital could proceed with treatment for a 14-year-old child diagnosed with Pre B Acute Lymphoblastic Leukaemia. The child had other underlying health conditions, and the parents did not want the child to undergo treatment. Instead, they wished for their child to die at home, to avoid the pain and suffering associated with the treatment. The hospital sought an order authorising the treatment, and the court was required to determine whether such an order should be made.

The court considered the principles of parens patriae jurisdiction, which allows the court to intervene in cases concerning the welfare of children. The court also examined the child's best interests, weighing the potential benefits of treatment against the suffering it may cause. The court had to balance the rights of the parents to make decisions for their child with the state's interest in protecting the child's welfare. Ultimately, the court determined that the child's best interests were served by authorising the treatment, despite the parents' wishes.

The court found that the treatment was likely to provide the child with a chance of survival and a better quality of life. While the treatment would be painful and difficult, the court considered it in the child's best interests to proceed. The court emphasised the importance of considering the child's views and wishes, but noted that the child was too young to make an informed decision. The court made an order authorising the hospital to proceed with the treatment, overruling the parents' wishes.

The final order of the court was that the hospital was authorised to proceed with the treatment of the child, in accordance with the principles of parens patriae jurisdiction and the best interests of the child. The court emphasised the importance of considering the child's welfare and the potential benefits of the treatment, while also acknowledging the suffering it may cause. The court's decision highlighted the difficult balance between respecting the rights of parents and protecting the welfare of children in cases of medical treatment.

Orders