Hunter New England Local Health District v JI

[2023] NSWSC 1245

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

19 October 2023

Date of orders:

19 October 2023

Decision date:

23 October 2023

Jurisdiction:

Equity - Duty List

Before:

Henry J

Decision:

Orders made authorising use of blood and blood product transfusions on terms and for the suppression of identities.

Catchwords:

CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae — Child requiring two proposed surgical procedures — Where surgeries could require blood and/or blood product transfusions — Where parents consent to surgery but refuse consent to use of blood and blood products due to religious belief

Legislation Cited:

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

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

Cases Cited:

Department of Health and Community Services (NT) v JWB and SMB (Marion’s case) (1992) 175 CLR 218; (1992) 106 ALR 385; [1992] HCA 15

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

Minister for Health v AS (2004) 29 WAR 517; (2004) 33 Fam LR 223; [2004] WASC 286

Re Alex (2004) 180 FLR 89; (2004) 31 Fam LR 503; [2004] FamCA 297

Sydney Children’s Hospital Network v X (2013) 49 Fam LR 330; [2013] NSWSC 368

X v Sydney Children’s Hospitals Network (2013) 85 NSWLR 294; (2013) 304 ALR 517; [2013] NSWCA 320

Category:

Principal judgment

Parties:

Hunter New England Local Health District (Plaintiff)
JI (First Defendant)
Mother (Second Defendant)
Father (Third Defendant)

Representation:

Counsel:
K Kumar (Plaintiff)
E J Engwirda (Second and Third Defendants)

Solicitors:
NSW Ministry of Health (Plaintiff)
Peake Legal (Second and Third Defendants)

File Number(s):

2023/00332073

Publication restriction:

The orders made on 19 October 2023 prohibit the publication or disclosure of any information tending to reveal the identity of JI, the mother and father of JI, the hospital, 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 treatments to JI.

JUDGMENT

1. These reasons deal with an application brought by the plaintiff, the Hunter New England Local Health District, for an order authorising the provision of blood transfusion procedures in relation to two surgeries to be undertaken on a three-year old girl and ancillary orders. In these reasons, I refer to the young girl as JI, her parents as Mother and Father respectively and together as the Parents (who are the second and third defendants), and the hospital at which JI has been and is to be treated as the Hospital.

2. The plaintiff’s application has been brought as JI’s Parents are Jehovah’s Witnesses. In accordance with their beliefs, they have not consented to JI receiving blood or blood product transfusions in connection with the proposed surgeries.

3. The plaintiff’s application was supported by an affidavit from a Paediatric Surgeon at the Hospital who is the clinician in charge of JI’s care, an affidavit from a solicitor employed by the NSW Ministry of Health and detailed written submissions. The Parents were represented by counsel at the hearing. They relied on written submissions provided in advance of the hearing. The Court was greatly assisted by the written and oral submissions of the parties.

4. The plaintiff’s application was heard by me sitting as the Equity Duty Judge on 19 October 2023. At the conclusion of the hearing, I indicated that I was satisfied that the Court should grant the relief sought by the plaintiff and the parties were content for my reasons to follow. Later that day, I made orders in terms that had been agreed by the parties.

5. The plaintiff’s application invoked the Court’s parens patriae jurisdiction.

6. The power of the Court under that jurisdiction to make orders, including where the parents of a child have not consented to medical treatment, is well established. On such an application, the overriding criterion to be applied by the Court is the best interests and welfare of the child. The role of the Court on an application such as this is to exercise an independent and objective judgment so as to balance the advantages or disadvantages of the medical procedure under consideration: Department of Health and Community Services (NT) v JWB and SMB(Marion’s case) (1992) 175 CLR 218 at 240; (1992) 106 ALR 385; [1992] HCA 15 (Mason CJ and Dawson, Toohey and Gaudron JJ); Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193 at [15]; Sydney Children’s Hospital Network v X (2013) 49 Fam LR 330; [2013] NSWSC 368 at [10]–[12]; and X v Sydney Children’s Hospitals Network (2013) 85 NSWLR 294; (2013) 304 ALR 517; [2013] NSWCA 320 at [2].

7. Relevant factors to take into account include consideration of the nature of the medical condition and treatment, the reasons for the treatment, the risk to the child’s health with and without the proposed treatment, the alternative courses of treatment that are available, the views and faith of the child’s parents and the views of the treating doctors: Re Alex (2004) 180 FLR 89; (2004) 31 Fam LR 503 at 537–9; [2004] FamCA 297; and Minister for Health v AS (2004) 29 WAR 517; (2004) 33 Fam LR 223; [2004] WASC 286 at [19]–[22].

8. JI was born with a range of serious medical conditions, including omphalocele, renal abnormalities, cardiac defect and developmental dysmorphism without a unifying genetic diagnosis. Those conditions mean that JI currently suffers from several medical complications, such as malrotation and twisting of the intestines and an anterior abdominal wall hernia defect, and is dependent on tube feeding which requires regular replacement.

9. The Parents have cooperated in the ongoing medical treatment of JI. Relevant to this application, the Parents have consented to JI undergoing two surgeries that JI’s treating specialist and medical team at the hospital have recommended. The first operation is a repair of the hernia and abdominal wall defect. The second involves the insertion of a feeding gastrostomy or surgical jejunostomy.

10. The evidence on the application indicated that JI’s treating specialist and medical team have been sensitive to the Parents’ desire to avoid treating JI with blood or blood products given their religious beliefs. They have considered and will continue to take steps to exhaust all alternative treatments, and will adopt a blood conservation strategy in the course of the surgeries and as part of JI’s recovery. Despite this, the evidence from her treating specialist is that it may be clinically necessary to treat JI with blood and/or blood products in connection with the surgical procedures to manage the risk of damage to her health, including the risk of death.

11. The strongly held convictions of the Parents were factors which the Court took into account. However, based on the medical evidence and the submissions advanced by the parties, I considered this to be a case where it was clearly in JI’s best interests and welfare to authorise the proposed treatment in advance of her upcoming surgeries.

12. 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: Children and Young Persons (Care and Protection) Act 1998 (NSW), s 174(1). 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 what treatment was authorised before JI’s condition deteriorated to the point of an emergency and an urgent decision was required under that Act.

13. Given the nature of the application, I was also satisfied that it was appropriate to make orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) which prohibit the publication or disclosure of any information tending to reveal the identity of JI, the Parents, the Hospital, any witnesses in the proceedings and any of the medical practitioners, nursing staff or other persons who have provided or will provide the treatment. The non-publication order will be for the period up to the time when JI turns 25 years of age and will operate throughout Australia.

14. For these reasons, on 19 October 2023, I made orders in Chambers in accordance with the short minutes of order agreed by the parties, which included the following:

(17)   ORDER that for the purposes of these orders:

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

(b)   treatment ancillary to 17(a)

be referred to as the ‘blood transfusion procedures’.

(18)   ORDER that for the purpose of these orders, the two proposed surgical procedures, namely:

(a)   the repair of the hernia and abdominal wall defect; and

(b)   the insertion of a feeding gastrostomy or surgical jejunostomy,

be referred to as the ‘surgical procedures’.

(19)   ORDER that in the absence of the consent of the parents of the child, Dr XXX (‘the authorised clinician’) of XXX hospital (‘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 the child during her admissions for the surgical procedures if:

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

(d)   in forming the opinion referred to in 19(c) the authorised clinician at all times seeks to avoid unnecessary use of and to minimise the use of the blood transfusion procedures.

(20)   ORDER that in the event that the authorised clinician is not available, then for the purposes of order 19, 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.

(21)   ORDER that there be no orders as to costs.

**********

Decision last updated: 23 October 2023