Hospital v Baby M - [2020] NSWSC 1481

Supreme Court

New South Wales

Medium Neutral Citation: Hospital v Baby M [2020] NSWSC 1481
Hearing dates: 15 October 2020
Date of orders: 15 October 2020
Decision date: 15 October 2020
Jurisdiction: Equity
Before: Rees J
Decision:
Note consent of parents’ to surgery on baby; decline to make declarations.

Catchwords:
Parens patriae – hospital seeks authority for surgery on baby – parents give consent before hearing – whether Court should make declarations authorising surgery – nature of jurisdiction at [3]-[10] – where parents now consent, no need for Court to exercise parens patriae jurisdiction – importance of parents continuing to make these difficult decisions.

Cases Cited:
Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193
J v C [1970] AC 668
R v Gyngall [1893] 2 QB 232
Re Joel [2013] NSWSC 1299
Re O'Hara [1900] 2 IR 232
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15
The Hospital v S (a minor) [2019] NSWSC 642
Wellesley v The Duke of Beaufort (1827) 2 Russ 1

Category: Principal judgment
Parties: Hospital (Plaintiff)
Baby M (First Defendant)
The Mother (Second Defendant)
The Father (Third Defendant)
Representation:
Counsel:
Mr Windsor SC (Plaintiff)
Ms T Stevens (First Defendant)
Mr A Cheshire SC (Second and Third Defendants)
Solicitors:
NSW Ministry of Health (Plaintiff)
Legal Aid NSW (First Defendant)
McLaughlin & Riordan Solicitors (Second and Third Defendants)

File Number(s): 2020/293004

EX TEMPORE Judgment

HER HONOUR: These proceedings were commenced on 12 October 2020, when a specialist children's hospital sought orders in the Court’s parens patriae jurisdiction to authorise cardiac and ear nose and throat (ENT) surgery on a three month old baby girl, “Baby M”, at a time when the baby’s parents had not given their consent. Before the hearing commenced today, I was informed that the parents now consent to the cardiac surgery. It is proposed that these proceedings will be stood over to allow that surgery to be performed and Baby M to recovery from the surgery. Then the parents will consider the ENT surgery, which it appears from the medical evidence should be undertaken as soon as possible thereafter.
The matter for consideration is what form the orders to reflect this consensus should take, that is, whether the Court should simply note that the parents now consent to the cardiac surgery or whether the Court should make declarations that the hospital is authorised to perform those specific procedures. Senior counsel for the hospital submitted that it is in the interests of all parties – the baby, the parents and the doctors – to have clarity and certainty, to avoid any confusion going forward, and to ensure that there is no change of direction in respect of the surgery, which is to be performed tomorrow. Senior counsel for the parents submitted that, the parents having now given their consent, there was no need for the Court to exercise its parens patriae jurisdiction. Counsel…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] NSWSC 1481
Decision Date: 15 October 2020

CaseChat Overview and Summary

The case before the court was between the Hospital and Baby M, involving a dispute regarding the authorisation of surgery on the infant, Baby M. The hospital sought declarations from the court authorising the performance of surgery on the infant, despite the parents having already provided their consent before the hearing. The case came before the court under the inherent jurisdiction of the court to exercise its parens patriae authority, where the court acts in the best interests of the child.

The central legal issue before the court was whether it should make the declarations authorising the surgery, given that the parents had already consented to the procedure. The court examined the nature of its jurisdiction in these circumstances, particularly the role of the parens patriae jurisdiction. The court held that since the parents had provided their consent, there was no need for the court to exercise its parens patriae jurisdiction in authorising the surgery. The court emphasised the importance of the parents continuing to make these difficult decisions, in accordance with their parental responsibilities.

In reaching its decision, the court found that there was no requirement for it to make the declarations authorising the surgery, as the parents had already provided their consent. The court underscored the significance of the parents' role in making decisions for their child, particularly in situations involving medical treatment. The court's decision recognised the need to respect the parents' authority and involvement in such matters, while also acknowledging the court's inherent jurisdiction to intervene in certain circumstances. The court's reasoning and outcome in this case highlight the importance of balancing the rights of parents with the welfare of the child, and the need for the court to exercise its jurisdiction judiciously.

Orders