H v RJ

[2024] NSWSC 1404

Supreme Court

New South Wales

Medium Neutral Citation:

H v RJ [2024] NSWSC 1404

Hearing dates:

4 November 2024

Date of orders:

4 November 2024

Decision date:

04 November 2024

Jurisdiction:

Equity

Before:

Hammerschlag CJ in Eq

Decision:

Declare that the medical practitioners may administer a blood transfusion to RJ if they are of the opinion that a blood transfusion is necessary

Catchwords:

PARENS PATRIAE – 16 year old boy has heart condition necessitating urgent treatment – In the unlikely event of a difficulty (with the procedure) where bleeding is involved a blood transfusion might be required – The child’s parents and the child oppose blood transfusion on religious grounds – HELD the welfare and best interests of the child require the refusal of consent to be overridden – Obiter observations on the relevance, if any, of s 174 of the Children and Young Persons (Care and Protection) Act 1998 to the exercise of parens patriae jurisdiction

Legislation Cited:

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

Cases Cited:

H v AC [2024] NSWSC 40

Hunter New England Local Health District v C [2024] NSWSC 929

X v the Sydney Children’s Hospital Network (2013) 85 NSWLR 294

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
K Kumar (Plaintiff)
P Guterres (First Defendant)
EJ Engwirda (Second and Third Defendant)

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

File Number(s):

2024/396028

Publication restriction:

Yes

Ex-Tempore JUDGMENT (Revised)

1. HIS HONOUR: This judgment is being delivered in the urgent circumstances described below and is therefore, in somewhat abbreviated form.

2. The first defendant (RJ) is 16-year-old boy who has been diagnosed with arrhythmogenic right ventricular cardiomyopathy (fatty fibrous tissue replaces normal heart muscle and interrupts normal electrical signals in the heart), a condition which places him at risk of suffering life threatening arrhythmia of the heart. The heart also becomes weaker over time, leading to heart failure.

3. RJ’s treating practitioner, a Paediatric Congenital Heart surgeon, recommends the surgical insertion of an implantable cardioverter defibrillator, a device which will maintain a normal heart rhythm.

4. Surgery is scheduled for the day after tomorrow.

5. The general risk associated with this procedure is low, but if something were to go wrong, and bleeding caused, RJ may need a blood transfusion. Whether this is needed will, of course, be a matter for clinical judgment, which will only be able to be made when the circumstances have arisen calling for it.

6. There are other products (not whole blood, red cells, white cells, platelets or plasma) which could be helpful in the event of misadventure, but the use of such products may bring with it dilution of RJ’s red blood cell count. Red blood cells play a key role in carrying oxygen to tissue and dilution brings with it the risk of organ (including brain) damage.

7. RJ and his mother and father (the parents) are devoted adherents to the Jehovah’s Witness faith.

8. They consent to the surgery but based on biblical precepts “to abstain from blood”, they oppose blood transfusion.

9. By Amended Summons, filed with leave today, the plaintiff hospital (where the surgery is scheduled) seeks the following orders:

12. A declaration (in the Court’s parens patriae jurisdiction or otherwise), that in the absence of the consent of the parents of RJ…(‘the authorised clinician’) of the Hospital is authorised to order that:   

(a) any qualified member of nursing staff of the Hospital; or

(b) any qualified medical practitioner employed or contracted by the Hospital

administer the blood transfusion procedures in relation to RJ during his admission for implantation of the implantable cardioverter defibrillator if:

(i) in the opinion of the authorised clinician, the blood transfusion procedures are necessary rather than any other medical procedures;

(ii) in forming the opinion referred to in 12(b)(i), the authorised clinician at all times seeks to avoid unnecessary use of and to minimise the use of blood transfusion procedures.

13. In the event that the authorised clinician is not available, then for the purposes of order 12, the authorised clinician shall instead be a medical practitioner of the Hospital, provided that that person has access to and has read a copy of these orders.

14. That for the purposes of these orders:

(a) the transfusion of blood or blood products and a reinfusion of RJ’s own blood; and

(b) treatment ancillary to 14(a)

be referred to as the ‘blood transfusion procedures’.

10. RJ’s treating practitioner gave affidavit evidence and was cross-examined. He was an impressive witness whose evidence can be distilled into the following:

1. the risk of something going wrong is low, but this can and does happen;

2. not every situation where things go wrong needs a blood transfusion, but some, where bleeding has taken place, do;

3. whether a blood transfusion is needed is a matter of clinical judgment and whilst there is a predisposition against transfusions, the clinician should not hold back if, in her or his judgment, the safety of the patient warrants it. That safety involves, amongst others, avoiding the possibility of organ damage; and

4. the risk involved in blood transfusion itself is very low.

11. Both parents provided affidavits explaining their position. Neither was cross-examined. I give due weight their and RJ’s religious beliefs.

12. RJ himself conveyed his stance in a written statement introduced by way of an attachment to an affidavit by the solicitor appointed his legal representative. The contents and articulation of his statement convey intelligence and understanding commensurate with his age. I recognise the importance of attributing to him an appropriate level of autonomy in his decision to withhold consent to a blood transfusion.

13. In this context, however, there is also a comprehensive report by a clinical psychologist which concludes that RJ is not yet at a level where he can function autonomously or independently in the specific area of medical decision making and despite his otherwise, generally, good age-appropriate maturity, in the specific area of medical decision making he continues to lack appropriate competence.

14. I received helpful written submissions from all parties. My attention was drawn to various relevant authorities dealing with the exercise of the parens patriae jurisdiction, in circumstances such as these, including X v the Sydney Children’s Hospital Network (2013) 85 NSWLR 294 and more recently H v AC [2024] NSWSC 40 (Meek J). It is not necessary to canvas them.

15. The overriding consideration is the welfare and best interests of RJ. Giving due weight to the wishes of his parents and his own level of autonomy, I am persuaded that the Court should exercise its jurisdiction to override RJ’s and his parents’ position.

16. The fact that the risk of something going wrong is low, and that the risk of requiring blood only arises if the original risk comes home and, even then, is not an inevitability, is a factor which in my opinion strongly favours the order sought. Because of these circumstances, it is unlikely that RJ’s wishes and those of his parents will be overridden. It is therefore unlikely that there will be non-observance of the tenets of their faith.

17. But if the situation arises where those wishes must (in the judgment of the plainly highly competent doctors in whose care he finds himself) be overridden, his safety and wellbeing are paramount.

18. I was referred to the recent decision of Parker J in Hunter New England Local Health District v C [2024] NSWSC 929, in which amongst others, His Honour, considered the interplay between the exercise of this jurisdiction and the existence and availability of s 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) which provides:

174   Emergency medical treatment

(1)  A medical practitioner may carry out medical treatment on a child or young person without the consent of—

(a)  the child or young person, or

(b)  a parent of the child or young person,

if the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life or to prevent serious damage to his or her health.

19. For the purposes of s 174, a “child” is a person under the age of sixteen, and a “young person” is above the age of sixteen but under the age of eighteen.

20. I agree with His Honour’s observations at [45] that the existence of the section does not limit the Court’s powers under the parens patriae jurisdiction with respect to a young person or child. At [46], however, His Honour expressed the view that the availability of s 174 is something to be taken into account if the Court is asked to make an order under its parens patriae jurisdiction. His Honour referred to the fact that a parens patriae order may give complete certainty and enable practitioners to proceed without any concern that action will be taken against them for administering the treatment in question, but that, on the other hand, the making of an application will impose costs on all parties and may prove to be a distraction especially if it is sought on the basis of a contingency which does not eventuate.

21. I respectfully express my reservations as to the correctness of this approach, particularly in a case like this.

22. Section 174 provides a defence to a doctor who acts when it is his or her opinion that it is necessary to do so as a matter of urgency. The focus is on the medical practitioner having an opinion that treatment must be carried out as a matter of urgency to save the patient’s life or to prevent serious damage to their health. The focus of the parens patriae jurisdiction in a case such as this, is protection of the object of the application and that interest is paramount.

23. I do not think that whether the doctor ultimately may have a defence is a relevant consideration. One can readily see complex and lengthy arguments about urgency and the efficacy of the doctor’s opinion that what was done was in order to save life or prevent serious damage. I do not think a doctor should have to wait and see if they get sued and put up a defence. Recognising the limitations of arguing by analogy, a trustee can seek the opinion of the Court in advance without having to wait and see whether a defence of exoneration will work.

24. Added to this, and demonstrative of the difficulty of allowing s 174 to intrude, the hospital led unchallenged evidence from a specialist in Paediatric surgery, Oncology and Thoracic surgery, to the effect that it is very rare, uncommon and unnecessarily risky for a surgeon to wait until a patient requires blood to save their life or prevent serious harm to their health before transfusing blood products. He gave evidence that it is neither desirable nor in the patient’s best interest to wait for the patient to deteriorate to the point of it being an urgent situation, where their life is at risk or there is a risk of serious harm to their health, to administer blood products. This could potentially lead to the patient requiring more blood products than initially would have been required if the patient received the blood products when it first became clinically necessary for them to do so. He gave evidence of the undesirability of delaying the administration of blood products beyond the time it becomes clinically necessary to do so. These are compelling observations.

25. I make the following orders:

1. Declare that in the absence of the consent of the parents of RJ, the authorised clinician of the Hospital is authorised to order that:

1. any qualified member of nursing staff of the Hospital; or

2. any qualified medical practitioner employed or contracted by the Hospital

administer the blood transfusion procedures in relation to RJ during his admission for implantation of the implantable cardioverter defibrillator if:

1. in the opinion of the authorised clinician, the blood transfusion procedures are necessary rather than any other medical procedures;

2. in forming the opinion referred to in 1(b)(i), the authorised clinician at all times seeks to avoid unnecessary use of and to minimise the use of blood transfusion procedures.

2. In the event that the authorised clinician is not available, then for the purposes of order 1, the authorised clinician shall instead be a medical practitioner of the Hospital, provided that that person has access to and has read a copy of these orders.

3. For the purposes of these orders:

1. the transfusion of blood or blood products and a reinfusion of RJ’s own blood; and

2. treatment ancillary to 3(a)

be referred to as the ‘blood transfusion procedures’.

4. Pursuant to s 7 of the Suppression and Non-Publication Orders Act 2010 (NSW), up until the death of the last surviving defendant or until further order of the Court, the publication of any information concerning the identity of the plaintiff, the plaintiffs’ witnesses and the clinical psychologist referred to in these reasons is prohibited. Unless all of the surviving defendants have given written consent otherwise, disclosure of the identity of the defendants and the content of their evidence is prohibited.

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Decision last updated: 05 November 2024