Hunter New England Local Health District v C

[2024] NSWSC 929

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

15 March; 12, 22 April 2024

Date of orders:

15 March; 31 July 2024

Decision date:

31 July 2024

Jurisdiction:

Equity - Duty List

Before:

Parker J

Decision:

See [96]-[97]

Catchwords:

CHILD WELFARE — jurisdiction — Supreme Court of New South Wales — parens patriae — child requiring surgical procedures where blood transfusion may become necessary — parents consent to surgical procedures but refuse consent to possible blood transfusion on religious grounds — order authorising potential transfusion made — further consideration of whether application was necessary given provisions of s 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) — whether to make suppression orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) given existing protections parties have – closure of Court and file – pseudonym orders — equitable obligations of confidence — Court confidentiality — statutory suppression order made

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998

Court Suppression and Non-publication Orders Act2010

Cases Cited:

Bourne v Raychem Corporation [No 3] [1999] 1 All ER 908

Breen v Williams (1996) 186 CLR 71

Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509

Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39

Crest Homes Plc v Marks [1987] 1 AC 829

Earl v Nationwide News Pty Ltd [2013] NSWSC 839

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125

Hunter New England Local Health District v JI [2023] NSWSC 1245

Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21

Re Bernard [2009] NSWSC 11

Scott v Scott [1913] AC 417

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Unicomb v Blais [2024] NSWSC 903

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

Texts Cited:

JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015)

P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters)

Category:

Principal judgment

Parties:

Hunter New England Health District (Plaintiff)
C (First Defendant)
M (Second Defendant)
F (Third Defendant)

Representation:

Advocates:
J Wong (solicitor) (Plaintiff)
E Engwirda (counsel) (Second and Third Defendants)

Solicitors:
Crown Solicitors Office (Plaintiff)
Peake Legal (Second and Third Defendants)

File Number(s):

2024/99625

Publication restriction:

Nil

JUDGMENT

1. These are proceedings in the Court’s parens patriae jurisdiction concerning the first defendant, who is a twelve year-old boy. They were brought to obtain authorisation to administer blood transfusions to him, if required, in the course of surgery in a hospital operated by the plaintiff. The reason for the application was that his parents, who are the second and third defendants, while consenting on his behalf to the surgery, did not consent to the use of blood transfusion procedures as part of it.

2. In accordance with the pseudonym orders made at the beginning of the proceedings, the child who is the subject of the proceedings is referred to as “C”, and his mother and father are referred to as “M” and “F” respectively. The hospital at which C was treated is referred to as “H”.

3. The application was brought on for hearing urgently. It came before the Court on 15 March, only hours before the surgery was scheduled to take place. In the time available, full argument was not possible, but I was satisfied, in the circumstances, that authorisation should be given for the administration of a blood transfusion if necessary. I made orders accordingly. The surgery went ahead; as it happened, no transfusion was required.

4. One of the issues referred to at the hearing on 15 March was whether the application was necessary at all, given the provisions of s 174 of the Children and Young Persons (Care and Protection) Act 1998 (“CYPA”). Those provisions permit the administration of medical treatment without consent in certain emergency situations. There was no time to make a final decision on this on 15 March, and I considered that the raising of the issue was not a reason, in the circumstances, to refuse the application. The parties however asked me to hear further argument at a later hearing, in case the issue might be relevant to some future application.

5. Another matter which was held over was the question of non-disclosure and non-publication. The hearing on 15 March was held in closed court and, as already indicated, I made orders that the defendants and the hospital be referred to by pseudonyms. But the plaintiff sought further orders under s 7 of the Court Suppression and Non-publication Orders Act2010 (“CSPO Act”) concerning the proceedings (for convenience, I will refer to these as “statutory suppression orders”). Whether such orders should be made, and, if so, their scope, was also debated at later hearings.

6. This judgment therefore has three elements. First, I give my reasons for the orders I made on 15 March authorising the administration of blood transfusions to C, if required, in the surgery. Second, I set out my views on the application of CYPA s 174. Third, I deal with the application for suppression or non-publication orders under the CSPO Act.

Court’s authorisation of blood transfusions

7. On 10 March this year, C sustained a compound fracture to his lower left leg and was airlifted to H. Following consultations with C’s parents, M and F, his treating doctors decided to schedule surgery for him. The decision was confirmed on 12 March (a Friday) and the surgery was scheduled for 12:00 noon on the following Monday (15 March).

8. The application for approval first came before me in the Duty List on the morning of 15 March, two and a quarter hours before the surgery was scheduled to begin. The plaintiff was represented by a Solicitor Advocate of the Crown Solicitor’s Office, Ms Wong.

9. Ms Wong had prepared the application on the basis that it would be made ex parte. But moments before the hearing began, an email was sent on behalf of the parents stating their opposition to the application and seeking an adjournment to enable them to attend Court before the 12 noon deadline. I stood the application down to accommodate this request. At 11:15 am Mr Engwirda of counsel appeared for M and F, and the hearing then went ahead.

10. The application was supported by an affidavit from a plastic surgeon (“Dr P”), who was one of the surgeons to be involved in carrying out the procedures on C, and an affidavit from the Crown Solicitor with carriage of the matter.

11. Dr P, in his affidavit, set out the treatments that C had already received while at H, namely two surgeries to clean out and flush the wound. He then addressed the proposed surgical procedures, which involved surgeries undertaken by both the orthopaedics and plastics departments, stating that it was the standard and required treatment which was applied to injuries of this nature throughout the modern world.

12. Relevantly, Dr P stated:

Due to the significant amount of soft tissue that has been damaged on [C’s] leg, and the need to bring in tissue with [C’s] own blood supply, there are no smaller or less significant alternative treatment options which would have the same result.

…

If [C] does not have surgery on the 15 March 2024, or within the next 48 hours after that, the risk of infection becomes very high, and the risk of requiring amputation of the limb becomes very high.

13. He went on to emphasise the ‘very low’ likelihood that a blood transfusion might be required throughout the proposed surgery:

A risk of the surgery is that [C] may require a blood transfusion. My assessment is that the risk of [C] requiring a blood transfusion during the surgery is very low and it is very unlikely that we will need to undertake a blood transfusion.

…

I estimate that I have undertaken approximately 200 surgeries of this nature in the last 5 years. I estimate that a very small amount, approximately 10 patients, may have required a blood transfusion in the course of this surgery and in most of those cases, the patient required a transfusion due to a concurrent injury.

14. Dr P also summarised consultations which the parents had with various staff employed at H in which they were informed of the possible need for a blood transfusion to C. During these consultations, it was told to the parents that, in the “unlikely” circumstance that a blood transfusion was required and not administered during the principal surgery, there became a risk that C might lose his leg, or worse, die.

15. Finally, Dr P stated that C’s medical team had been sensitive to the religious beliefs of the defendants and, for this reason, planned to take additional steps throughout the surgical procedures to minimise C’s haemoglobin and blood loss.

16. The second and third defendants relied on an affidavit of M. She stated that she believed that the principal surgical procedures were the best course of treatment for C and that she was ‘eager’ for C to receive such procedures without delay. However, she did not consent to the “transfusion of whole blood, red blood cells, white blood cells, plasma or platelets for [C]” on the grounds that such procedure contravened her sincerely held religious convictions as a Jehovah’s Witness, and namely God’s command to ‘abstain from blood’ (Acts 15:28-29).

17. M also requested that, if the Court was minded to make orders authorising the transfusion of blood, they be limited in respect to their duration and only applicable to specified clinicians who are committed to avoiding any unnecessary use of blood transfusion procedures in accordance with her “deeply held religious beliefs”.

18. In response to M’s affidavit evidence, at approximately 11:37am, the form of the short minutes of order was amended. The amendments differentiated the surgical procedures from the blood transfusion procedures and limited the persons able to authorise the blood transfusions to certain ‘authorised clinicians’ who were, at all times, to minimise and avoid the unnecessary use of them.

19. The power of the Court, under its parens patriae jurisdiction, to make orders of the type sought by the plaintiff in circumstances such as the present is well established. The decision of the Court of Appeal in X v The Sydney Children’s Hospital Network (2013) 85 NSWLR 294 is the leading example. The scope of the power and the basis on which it is exercised, in the interests of the child who lacks legal capacity, emerge clearly from that decision, especially at [2]-[6] (Beazley P) and [26]-[31] and [51]-[68] (Basten JA). In X, the child in question was only four months away from turning eighteen and had forcefully expressed his own opposition to receiving a blood transfusion, but the order authorising it was upheld. That complicating factor does not arise in the present case because C is much younger, and it was not suggested that he had attained a sufficient level of maturity to form his own independent view.

20. The medical evidence of Dr P clearly established the need for the proposed surgical procedures and the lack of any adequate alternative treatment options. It also established that that there was a risk to C of leg amputation or death if a blood transfusion become required during the surgical procedures but was not administered. In the end, this did not appear to be in dispute. Prima facie, it was clearly in C’s best medical interests for his treating doctors to be able to administer a blood transfusion to him should that become necessary in the course of the surgery.

21. In considering my decision, I of course took into account the religious convictions of C’s parents and the importance to them that C be treated in accordance with the tenets of their faith. The weight of this factor, however, varies from case to case. In the case of a child with a terminal condition where the proposed treatment would not alleviate that condition, religious objections to that treatment might be of great weight. But in the present case, everyone agreed that surgery was necessary to correct damage from C’s injury, and the (potential) treatment in issue was simply an ordinary precaution to avoid adverse consequences which might otherwise result from that surgery.

22. No doubt C is being brought up to share his parents’ religion. But, given his age, it cannot be presumed that he will necessarily adhere to that religion as an adult. In circumstances where the Court was making a decision on C’s behalf with potentially life-changing implications, I thought that medical considerations, which strongly favoured the availability of blood transfusions, if required, outweighed religious objections to that course.

23. In this regard, it was also relevant that every reasonable step was being taken by H to minimise the possibility of transfusions being required. H was going as far as it medically could to accommodate the religious objections from C’s parents.

24. As already mentioned, there was an issue between the parties as to whether, in view of the terms of CYPA s 174, an authorisation order was required at all. Mr Engwirda contended that s 174 would be available if required; Ms Wong contended that it would (nor at least might) not be. There was no time to resolve the issue at the hearing.

25. It was my view that in cases where s 174 was available, it was still open to the Court to make a treatment authorisation order in its parens patriae jurisdiction (a view coinciding with the Court of Appeal’s decision in X: see [19] above). On no view, therefore, was the unresolved issue a reason to refuse authorisation. To the contrary, I thought the uncertainty as to the application of s 174 which existed at the time was itself a further factor in favour of making an order, which would put matters beyond doubt for those involved in C’s treatment.

26. For the above reasons, I was satisfied that the application was in the best interests of C and thus made orders, in the form of the amended short minutes of order, on 15 March.

Powers of medical practitioners under CYPA s 174

27. As I have mentioned above, the parties returned before the Court on 12 April to further consider the operation of CYPA s 174 in the context of its relevance to future applications of this nature. Each side provided further written submissions on the issue. Two affidavits were read on behalf of the defendants: a further affidavit from the second defendant, M; and an affidavit from the third defendant, F.

28. M’s second affidavit added further detail to what she had said in her original affidavit. Various consultations that she and F participated in with employees of H prior to the surgical procedures were summarised: the first with a haematologist; and the second with a paediatric social worker:

[The haematologist] explained that this was not the first time he had treated Jehovah's Witness patients and appeared sensitive to our instructions, assuring that he would do everything possible to avoid the administration of a blood transfusion. However, he explained that if a blood transfusion became urgent during the surgery, the law gives doctors the authority to administer it.

…

In the late afternoon of 14 March 2024, [the paediatric social worker] met with my husband and I [sic]. [She] indicated that the [H] legal team intended to seek a court order authorising the Doctors to administer a blood transfusion to [C] during the procedure.

29. F, in his affidavit, also referred to the consultation with the haematologist:

Although [the haematologist] was sensitive towards our concerns for [C’s] treatment and expressed he would do everything possible to avoid a blood transfusion, he did explain that in the event a blood transfusion became necessary to save [C’s] life or prevent serious injury during the procedure, there was provision in the law to allow for such treatment despite the absence of our consent.

30. CYPA s 174(1) 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.

31. 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. C was therefore a “child” for the purposes of the application.

32. Initially, Ms Wong contended that the parens patriae case law showed that recommended medical treatment should generally be provided before it becomes an emergency. But, in the present case, I thought this was impossible given that the emergency treatment (blood transfusion) is a contingent one which would only arise, if at all, during the scheduled surgical procedure. When I put this to Ms Wong, she modified her argument to focus on the ‘foreseeability’ of the possible emergency treatment and the fact that it was “identified and discussed with the parents” prior to the scheduled surgery.

33. In the end, Ms Wong’s argument was that where a medical procedure has been foreseen as a possibility, it needs to be the subject of a request for consent, and it thereby ceases to qualify as ‘urgent’ for the purposes of s 174. Accompanying this argument, was a general proposition advanced by Ms Wong that, as a matter of construction, the word ‘emergency’, as it appears in the heading of s 174, means that it cannot have been foreseen.

34. The first problem for Ms Wong’s argument is that the text of s 174 does not speak in terms of foreseeability. The operative term is “urgent”.

35. The two terms are not antonyms. Foreseeability calls attention to an anterior point in time at which an event was to have been foreseen. Urgency relates to a state of affairs as at the moment the term is contemplated. It does not look to an anterior event. Circumstances may arise which make a course of action urgent even if those circumstances were foreseeable, or, for that matter, even if they were actually foreseen.

36. It follows that, textually, the question which arises under s 174 is simply whether, at the time the medical practitioner is called upon to consider carrying out the treatment in question, that treatment is, in the practitioner’s opinion, necessary “as a matter of urgency”. It is immaterial whether the need for such treatment was, or might have been, foreseen at an earlier point.

37. This conclusion is supported by the express provision in s 174 that treatment may be carried out “without the consent” of the relevant child or parents. This means that s 174 is available even if consent to the treatment in question has been sought in advance and refused. That is not consistent with “urgency” in s 174 containing an element of unforeseeability.

38. The same conclusion is reinforced by considerations of Parliamentary intention. No submissions about the statutory history of s 174 were provided to the Court. But it is plainly a facultative provision which is designed to operate in the interests of patients by giving their treating practitioners power to carry out treatment which otherwise might not be possible because of a lack of prior consent. Its obvious intention is to give practitioners power to give whatever treatment they may consider, in the exercise of medical judgment, is in the patient’s interests. To require a practitioner to consider whether the treatment had, or might foreseeably have, been foreseen, and consent obtained, at an earlier point would at best be a distraction. At worst it could be disastrous. There is no warrant for introducing such a restriction by way of implication.

31. I do not think that the use of the word “emergency” in the heading to s 174 makes any difference. In the first place, section headings are, at best, a “minor aid” and an “unsure guide” to interpretation in the event that the provision itself is ambiguous (see P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [5.120]). I do not think there is any relevant ambiguity in s 174. In any event, an “emergency” no more implies unforeseeability than “urgency” does.

32. Finally, I turn to consider the case law. CYPA s 174 was mentioned in two first instance parens patriae cases to which I was referred: by Gzell J in Re Bernard [2009] NSWSC 11 and by Henry J in Hunter New England Local Health District v JI [2023] NSWSC 1245 (there was no relevant discussion of its operation in X). During the hearing on 12 April, Ms Wong told me that she had been unable to find any other case law on the question.

33. In Re Bernard, the child was a two year-old boy who had been diagnosed with acute lymphoblastic leukaemia. Gzell J made orders granting medical practitioners a “general entitlement” to transfuse blood to a child in the absence of the parents’ consent “if” it became necessary to do so. But it seems that there was no real doubt that transfusions would be necessary. His Honour summarised the medical evidence (at [11], emphasis added):

Dr Bergin says that the medical treatment being administered to Bernard will require further transfusions of blood products. It is not possible to predict when transfusions will be required, nor to predict how often transfusions will be required.

42. In explaining his decision to make the orders sought, his Honour stated (at [19]):

The purpose of making an order granting general entitlement, subject to [the medical practitioner’s] determination, or that of her substitutes if she is not available, that there is no alternative, and subject to the parents being advised of a transfusion, if that be possible, is to ensure that [the child’s] treatment programme proceeds in an orderly fashion. That, in my view, is in the best interests of the child. It is not sufficient that the hospital waits until [the child] is in a critical condition and a medical practitioner decides to act as a matter of urgency under [CYPA s 174].

43. In JI, Henry J was faced with an application, similar to that which was before me, seeking authority to treat a three year-old girl, JI, with blood or blood products, if it became necessary, during a surgery. At [12], Henry J made the following comment:

JI’s medical practitioners may be able to carry out the treatment without the Parents’ consent or a Court order in the event they are of the opinion that it is necessary, as a matter of urgency, to save JI’s life or prevent serious damage to her health: [CYPA s 174]. I accepted the plaintiff’s submission that it was preferable and in JI’s best interests for her treating specialist and medical team to have certainty about treatment was authorised before JI’s condition deteriorated to the point of an emergency and an urgent decision was required under that Act.

44. In neither of these cases was the Court presented, as I have been, with detailed submissions on the operation of CYPA s 174. I do not think either decision calls into question the conclusions which I have reached in that regard.

45. For the reasons which I have given, I think that CYPA s 174 will be available in most, if not all cases, of the present type. But at the same time, the decision in X clearly establishes that the existence of s 174 does not limit the Court’s powers under the parens patriae jurisdiction, with respect either to a “young person”, or, a fortiori, a child: at [48]-[50]. It is open for the Court to make an order authorising a medical practitioner to administer medical treatment to a child without the consent of the child’s parents if the circumstances so require and it is in the child’s best interests to do so, irrespective of whether the medical practitioner would have power to administer that treatment under s 174.

46. The availability of s 174 is, however, something to be taken into account if the Court is asked to make an order under its parens patriae jurisdiction. It seems to me that there is a balancing exercise to be carried out. On the one hand, an order authorising specified medical treatment under the parens patriae jurisdiction, provided that any conditions in the orders are met, gives complete certainty and enables medical practitioners to proceed without any concern that action will be taken against them for administering the treatment in question. On the other hand, the making of a parens patriae 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.

47. In these circumstances, if the treatment is particularly contentious, a parens patriae application may well be necessary to clarify the position so far as the medical practitioners are concerned, especially if, as in Re Bernard, the treatment in question is certain, or virtually certain, to be necessary. On the other hand, if the treatment involves a contingency which is unlikely to occur, and the child’s parents accept that their wishes can be overridden by a medical practitioner’s judgment of medical necessity under s 174, it may be better to spare all of the parties the costs of an application which the parents may feel duty-bound to contest.

48. In the present case, with the benefit of the argument which I have now received about the operation of CYPA s 174, I think that the section would have been adequate to protect C’s treating doctors should a transfusion have been required. On the evidence, it was quite unlikely that a transfusion would in fact be necessary, and the parents had been advised of, and apparently accepted, the existence of the statutory power to override their wishes concerning that contingency. Furthermore, every step had been taken, consistent with C’s proper treatment, to minimise the need for any such transfusion.

49. This, of course, is a hindsight view, and does not imply any criticism of the plaintiff’s decision to bring the parens patriae application in the present case. But should similar circumstances arise in future, it may be that no parens patriae application will be considered necessary.

Statutory suppression order

50. The plaintiff’s originating summons sought orders that the Court be closed and pseudonyms be assigned to the parties, and that, subject to any further order by the Court, the file be unavailable for review by any person except the parties (in C’s case, once he turns eighteen) and their legal advisors. The summons also sought the following statutory suppression order:

An order … up to and including 1 January 2030 or further order of the Court, pursuant to s7 of the [CSPO Act] prohibiting the publication or other disclosure of any information tending to reveal the identity of [C], [M], [F] or the Parents, H, any witness in the proceeding 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 [C].

51. In support of the summons, Ms Wong read an affidavit from the solicitor with carriage of the matter, Ms S. In her affidavit, Ms S supported the making of the above orders to protect the identity of the persons involved in the proceedings on the basis that:

The identification of [C] and his parents in the public arena potentially poses unnecessary stress or an increase in stress on the parents and [C] whilst he is currently seeking medical treatment. I am of the view that such stress is not in the best interests to [sic] [C].

In my opinion, it is necessary and in the public interest for the non-publication orders to be made and that the public interest in the making of those orders significantly outweighs the public interest in open justice.

52. M, in her initial affidavit, also sought the making of “an indefinite non-publication order” to be made in order to “ensure the privacy of both [C] and [M’s] family”.

53. As already noted, on 15 March I made a pseudonym order and an order that the proceedings be conducted in closed court. I also made the order for the file to be kept confidential, as sought. Such orders are usual in applications of the present type, and, as will be seen below, are justified by the nature of the proceedings. There was no time to hear argument about the statutory suppression order which was sought, and the issue was stood over for further hearing. But, from the outset, I did flag with the parties a particular concern that the order, as it appeared in the summons, contained a blanket prohibition on disclosure (to anyone, even a family member or friend of C) of information which might identify those who had been, or would be, involved in C’s medical treatment, irrespective of C’s wishes or those of his family.

54. When the matter returned before the Court on the 12 April, Ms Wong continued to press for an order in the same form as that sought in the summons. She advanced two bases, derived from s 8 of the CSPO Act, which she contended justified the making of an order of this nature. First, that it was necessary to protect the safety of the persons involved in the proceedings: s 8(c). Secondly, that such protection is necessary as a matter of public interest which outweighed the competing public interest in open justice: s 8(e). In her submissions she stated:

The likelihood that disclosure of the sensitive information would lead to identification of [C] and that such identification would be harmful to him is not the subject of evidence. It is respectfully submitted, however, that this can be safely inferred from the exceptional nature of the application combined with the specific names of the hospital and medical treaters.

55. For his part, Mr Engwirda read an affidavit from F and proposed his own amended draft version of the statutory suppression order. The affidavit indicated, in the same terms as M (see [52]), that he sought the making of an “an indefinite non-publication order”. The amended draft order was in the following form:

1. An order that pursuant to s7 of the [CSPO Act] prohibiting the publication of any information tending to reveal the identity of [C], [M], [F] or the Parents, H, any witness in the proceeding and any of the medical practitioners, nursing staff or other such persons who have provided or are able to provide medical, surgical and nursing ancillary to [C].

2.   Order 1 shall continue until the death of [C] or other order of the Court.

3.   Order 1 shall not bind the Defendants.

4.   Reserve to all parties liberty to apply for an order that Order 1 be discharged or varied.

56. Mr Engwirda’s draft order removed the prohibition on disclosure and sought only a prohibition on publication. Other differences concerned the duration of the order and the persons who are subject to it. Mr Engwirda contended that s 12(2) of the CSPO Act, which requires that “the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made”, namely to protect [C]’s privacy, should not limit the operation of the order to C reaching any particular age. He further submitted that, “given that the order is precipitated by questions of [C]’s privacy, the Defendants should not be subject to the order”.

57. Mr Engwirda submitted that a statutory order was necessary in the public interest (CSPO Act s 8(1)(e)). But a question arose as to whether the order was truly necessary given that the proceedings had been conducted in closed court and given the obligations of confidentiality which apply to the plaintiff, its medical staff and its lawyers (below [62]-[70]). When I raised this with Mr Engwirda, he received instructions to cease pressing for any orders under the CSPO Act.

58. Ms Wong also altered her position after I raised this point. She ceased to press for a non-disclosure order but continued to seek a non-publication order. But this did not deal with all of the questions which I had foreshadowed on 15 March regarding the scope of the proposed order. Eventually, I adjourned the proceedings at Ms Wong’s request to allow her a further opportunity to address such questions.

59. When the matter returned on the 22 April, Ms Wong provided draft orders in the following form:

1. Pursuant to s7 of the [CSPO Act] order that up to and including 1 January 2030 or until further order of the Court, the publication of any information tending to identify the following persons is prohibited without their written consent:

a.   any party to the proceedings;

b.   any witness to the proceedings; and

c.   the names of any medical staff of the Plaintiff who provided treatment to the First Defendant.

2. Pursuant to s7 of the Act, order that up to and including 1 January 2030 or until further order of the Court, publication by any party or witness to the proceedings, without the written consent of all parties, of the evidence led or the submissions made in the proceedings, is prohibited.

60. The question for the Court remains whether there is an appropriate basis in the first place to supress the publication of information relating to the proceedings and, if so, to what extent. But before dealing with that question, I think it is necessary to consider the other protections which the parties have from disclosure or publication of information about the proceedings and their subject-matter.

61. Those protections derive from three sources. One is the obligation which arises in equity from the receipt of confidential information. The second is the orders made on 15 March for the parties to be identified by pseudonyms, for the proceedings to be conducted in closed court, and for access to the court file to be restricted to the parties. The third is the obligation which attaches to documents provided compulsorily to the court.

62. Confidentiality in equity: Equitable obligations of confidence arise automatically where information has the necessary quality of confidence about it; and the information was imparted in circumstances importing an obligation of confidence: see Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21 at [39]. Obligations of confidence that will be enforced by equity need not be express.

63. In Breen v Williams (1996) 186 CLR 71, Gummow J described the equitable obligations of confidence owed by medical practitioners (citations omitted):

A medical practitioner has been said to be under an obligation in equity not to disclose confidential information concerning a patient which is learned in the course of professional practice, an obligation from which the medical practitioner may be released only with the express or implied consent of the patient.

64. In the usual case, this would cover all details of the advice and treatment given by the doctor to the patient. Indeed, confidentiality can extend to the very fact that the doctor is being seen by the particular patient: Earl v Nationwide News Pty Ltd [2013] NSWSC 839 at [15], per White J (as his Honour then was), and in my view that would usually be the case.

65. It has been established that the equitable obligation of confidence, in some instances, extends to third parties in receipt of confidential information. Mason J in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50 stated that (citations omitted):

…employees who had access to confidential information in the possession of their employers have been restrained from divulging information to third parties in breach of duty and, if they have already divulged the information, the third parties themselves have been restrained from making disclosure or making use of the information…

66. At a theoretical level, the scope of the obligation in this context is unsettled, and in particular, the degree of knowledge required by third parties about the confidentiality of the information itself remains undetermined: see JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015) at [42-155]. But it does appear to be accepted that some types of information are so private and personal that their confidentiality is, or ought to be, obvious to anyone into whose hands they may fall. On the face of it, that would apply to medical information which might come to H’s staff in the course of C’s treatment.

67. It thus appears that, as a general rule, the equitable obligation of confidence would prevent disclosure by any of those working at H who were involved in C’s treatment, or had access to records of his treatment. But even putting aside questions which may arise at the margin, there are limitations to that protection for practical purposes.

68. The first is that breach of confidentiality obligations only gives rise to civil remedies. Those remedies may include an injunction, which, if breached, can be enforced by way of contempt proceedings. But this can only happen if the Court first makes an order. There is no direct method of enforcement available which allows for immediate sanctions for a breach.

69. The second limitation is that such obligations are rooted in medical confidentiality. They do not directly apply to information generated or disclosed in other circumstances. Thus not every piece of information which came into the possession of one of the participants in these proceedings will, of its nature, necessarily be confidential.

70. The third is that confidentiality obligations protect only the person to whom the duty of confidence is owed. In the present case, the confidentiality is that of C and only C has standing to enforce it (I leave aside the possibility that some of the advice given to C’s parents may be confidential to them as well). Moreover, should C choose to waive confidentiality, no-one else can resist disclosure.

71. Orders for pseudonyms, court closure and non-disclosure of file: These orders will prevent a member of the public finding out about the identity of C and his family, and the hospital at which C was being treated, from observing the Court proceedings or from reading the judgment. But that does not, at least in terms, prevent disclosure by the parties or the legal representatives or other persons (such a court officer or transcript writer) who happen to have been present during the hearing.

72. Court confidentiality: There are implied obligations which exist in relation to particular documents produced in legal proceedings. Originally, older authorities (and in particular the leading English decision, Harman v Secretary of State for the Home Department [1983] 1 AC 280) proceeded on the basis that a party to proceedings in which documents were compulsorily produced gave an implicit undertaking of confidentiality as a condition of access to those documents. The principle established in Harman was related to documents produced on discovery.

73. However, the law has developed to broaden this obligation. Lord Oliver of Aylmerton stated in Crest Homes Plc v Marks [1987] 1 AC 829, at 854, that that the implied undertaking "applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind".

74. Departing from the requirement that documents need to be produced as a matter of ‘compulsion’, a strand of authority developed which simply reasoned that a document that is obtained for one purpose should not be used for another: see Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 at 510, cited in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 222-223. In Bourne v Raychem Corporation [No 3] [1999] 1 All ER 908, Laddie J extended the implied obligation to apply to ‘voluntarily’ provided taxation documents.

75. In 2008, the High Court adopted an analysis of the Harman principles which sees confidentiality as an obligation arising by operation of law upon access to materials produced, without the need for an undertaking: Hearne v Street (2008) 235 CLR 125 at [105]-[108]. The High Court, in this case, described this “implied obligation” as follows (at 155 [96]):

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.

76. One consequence was that the obligation was directly binding on non-parties to the proceedings (at [109] (emphasis added)):

The primary person bound by the relevant obligation is the litigant who receives documents or information from the other side pursuant to litigious processes. The implied undertaking also binds others to whom documents and information are given. For example, expert witnesses, who are not parties, commonly receive such documents and information and are bound by the obligation. It is likely that, in the future, documents and information will be provided to persons funding litigation, who will likewise be bound by the obligation. In Harman v Secretary of State for Home Department [[1983] 1 AC 280 at 300] the person in contempt was the party's solicitor. In Hamersley Iron Pty Ltd v Lovell [(1998) 19 WAR 316] it was the party's industrial advocate. In Watkins v A J Wright (Electrical) Ltd [[1996] 3 All ER 31 at 43] it was a person who was not qualified as a solicitor in the forum, but engaged in day-to-day conduct of the litigation. Laddie J thought “it would be just as much a contempt of court for, say, a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so” [Bourns v Raychem Corporation]…

77. But as Gleeson CJ remarked at the beginning of the judgment (at 131 [4]):

Because of the terms in which the [issue for determination] is expressed, it is unnecessary to decide how far beyond this class of persons consisting of servants or agents of a party the legal obligation extends: or the scope of the concept of use of a document for purposes other than the conduct of the legal proceedings in which the party is involved. Both questions could cause difficulties in other cases, but they do not arise in this case.

78. For present purposes, however, the key point is that such court confidentiality remains limited to documents produced under compulsion or information derived from such documents. It is well established that the obligation covers documents produced on subpoena or on discovery. There is more doubt about whether other documents generated for the purposes of the proceedings qualify. The authorities on affidavits produced pursuant to directions by the Court were recently reviewed by McGrath J: Unicomb v Blais [2024] NSWSC 903. His Honour concluded that such affidavits were not compulsorily produced for the purposes of the implied obligation. Even if they were, the same reasoning would not necessarily extend to every document generated in the course of the proceedings.

79. The significant change to the law effected by Hearne is that it dispensed with the need to ground the court confidentiality obligation in the giving of an undertaking by a party (by analogy with an express order of the Court). As the passage in Gleeson CJ’s judgment, which I have quoted, points out, there was no need in the case to go into questions of knowledge. The case established that, at least in some circumstances, there is a direct obligation on persons who come into possession of documents produced compulsorily, or information derived therefrom, to keep the documents confidential. Even so, the reference in the joint judgment to transcript writers or court ushers is noticeable. The idea seems to be that such a person is under a direct obligation of confidentiality merely as a result of becoming aware of information which the Court’s rules require to be kept confidential.

80. If this is correct, then there might be scope to expand the obligation of Court confidentiality beyond documents compulsorily produced. If transcript writers and court ushers are subject to a confidentiality obligation owed to the court as a result of coming into possession of information derived from documents disclosed compulsorily, why should they not be under such an obligation whenever they come into possession of information which the court is treating as confidential? Such a generalised principle would have obvious application to information elicited in a closed court hearing.

81. But for the moment this is only a potential development in the law. Whether the implied obligation of court confidentiality can be extended in this way has not been discussed in any of the authorities to which I was referred, or which I have consulted in the preparation of these reasons.

82. Order under CSPO Act: The Act takes as its starting point the fundamental common law principle that, apart from exceptional cases, court proceedings should be conducted openly and in full view of the public. The classical exposition of the common law principle is the decision of the House of Lords in Scott v Scott [1913] AC 417. But as the decision recognised, at 483, there are exceptions where proceeding in private is justified, and one of those involves the exercise of the parens patriae jurisdiction:

…the jurisdiction over wards and lunatics is exercised by the judges as representing His Majesty as parens patriae. The affairs are truly private affairs; the transactions are truly transactions intra familiam; and it has long been recognised that an appeal for the protection of the court in the cases of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs…

83. It follows that there is scope in the present proceedings for a statutory suppression order if the circumstances warrant it. In that regard, I agree with Ms Wong’s submission that the Court may receive evidence on the degree of risk to those involved in the proceedings if they are conducted in public, but does not require such evidence in order to make a suppression order. The Court may act on its own general knowledge.

84. The starting point is to consider the circumstances of C. Through no fault of his own, he is at the centre of these proceedings. They concern a deeply personal and private subject. His individual dignity and autonomy require that the subject matter of the proceedings should not be disclosed to strangers without his consent.

85. C’s parents are in a similar position. For them, too, the subject matter of the proceedings is also deeply private and personal. I accept that their faith gave them no choice but to refuse consent on C’s behalf, which inevitably meant that they would be made defendants in these proceedings. Like C, they have had no real choice in the matter.

86. The evidence before me shows that C’s parents have acted throughout in accordance with what they genuinely believe to be C’s best interests, including his spiritual interests. But unfortunately, there may well be some who would vilify them for the choice which they have made, especially if a transfusion had proved to be necessary. That is something which they are entitled to be protected against.

87. The evidence also demonstrates that those who have been responsible for C’s medical care at H, and have conducted this litigation on the plaintiff’s behalf, also have what they consider to be C’s best interest at heart. But their position is somewhat different from C’s parents.

88. In the first place, while those who are involved in C’s treatment are obliged to respect his confidence and not to disclose information about his treatment without his consent, they have no converse entitlement to privacy. They cannot object if C should wish to disclose his dealings with them.

89. Furthermore, it would be fanciful to think that anyone would attack C’s doctors for giving advice in accordance with their best medical judgment, or attack those who were responsible for bringing the present application for having done so. There is nothing to suggest that C’s parents, or Jehovah’s Witnesses generally, subscribe to any doctrine which would lead them to militancy. Indeed, the evidence from C’s parents that they would accept the Court’s decision demonstrates the contrary.

90. In the light of these general comments I turn to consider whether a statutory suppression order should be made, and if so the formulation of the terms of such an order.

91. As already noted, I considered that the terms of the order as initially presented by Ms Wong were too wide. An order in that form would have prevented C, or his parents, identifying anyone who had been involved in C’s treatment, whether that person’s role had been the subject of evidence or submissions before the Court or not. While C and his family should be entitled to keep the details of his treatment, and the identity of those who treated him, confidential, they also need to be able to disclose that information to other family members and friends if they wish.

92. On the other hand, the order as presented was too narrow. It referred only to information likely to disclose the identity of the parties to the proceedings. But, in my view, the justification for confidentiality is wider. It extends to the disclosure of details concerning the evidence about C’s treatment and about the communications between doctors and administrators at H and C’s parents. In my view, proper protection of that interest would require an order prohibiting the disclosure, not merely of the names of the parties, but of the evidence and submissions made in the proceedings.

93. Given my earlier conclusions, I do not propose to make any order suppressing the names of C’s doctors or those involved in his treatment or in these proceedings. Of course this means that if C and his parents wish to publicise any aspect of his treatment, including the advice they received from medical professionals and hospital administrators (although there is no reason to think that they will), neither the individuals involved nor the plaintiff can prevent that from happening. But that is no more than something to be expected for public institutions and those who work in them.

94. The final question is how long the order should last for. Clearly there should be an opportunity for anyone affected by the orders to seek variation in the future, if circumstances arise which justify that course. Apart from that, I see no reasons why C’s interest in privacy should cease when he turns 18.

95. There is also the interests of C’s parents. In my view their interests are independent of C’s. There is no reason to think that C, in his later life, will disagree with his parents’ refusal of consent, let alone expose them to public condemnation for that refusal. But, in my judgment, they would be just as entitled to be protected against their role in the proceedings being publicly disclosed without their consent by C as by anyone else. To reflect this, the order will provide that, subject to any other order the Court may make in future, the suppression order will extend for the joint lifetimes of C and his parents, unless released by all of them.

Orders

96. The orders the Court made on 15 March were relevantly:

1. The Court be closed pursuant to s 71 of the Civil Procedure Act 2005 (NSW).

…

1. The proceedings be known as “Hunter New England Local Health District v C” and that the child the subject of the proceedings be known as “C”.

2. That the mother of child be referred to as “M”.

3. That the father of the child be referred to as “F”.

4. That the parents of the child be referred to as “the Parents”.

5. That the hospital be referred to as “H”.

6. That subject to any contrary order of the Court, the Court file not be available for review by any person other than C (upon reaching his majority or order of the court), M, F, the Plaintiff and or their legal representatives.

7. Order that for the purposes of these orders:

   (a)   the transfusion of blood or blood products; and

   (b)   treatment ancillary to 15(a)

   be referred to as the ‘blood transfusion procedures’.

8. Order that for the purpose of these orders, the proposed surgical procedures, namely:

   (a)   orthopaedic surgery to treat a compound fracture of the left tibia and,

   (b)   plastics and reconstructive surgery to repair soft skin tissue damage on the left leg,

   be referred to as ‘the surgical procedures’.

9. Order that in the absence of the consent of the parents of the child, authorised medical treaters (‘authorised clinicians’) of H are authorised to order that:

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

   (b)   any qualified medical practitioner employed or contracted by the H, administer the blood transfusion procedures in relation to the child during his admission for the surgical procedures if:

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

   (ii)   in forming the opinion referred to in 17(b)(i) the authorised clinician at all times seeks to avoid unnecessary use of and to minimise the use of the blood transfusion procedures.

   97. The supplementary order now made by the Court is:

10. Order that, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, up until the death of the last surviving defendant or until further order of the Court:

    (a)   the publication of any information tending to identify a person as a party to the proceedings;

    (b)   the disclosure of the evidence led in the proceedings or the submissions made in the proceedings,

    is prohibited without the written consent of all surviving defendants.

Decision last updated: 01 August 2024