In re H

[2011] QSC 427

[2011] QSC 427

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

DALTON J

IN RE H

BRISBANE

..DATE 07/10/2011

ORDER

NOTE:  THIS TRANSCRIPT HAS BEEN REVISED TO PREVENT IDENTIFICATION OF THE INFANT.

HER HONOUR:  This is an application which was brought on urgently at half past four this afternoon in relation to an infant who is approximately 40 hours old.

The infant was born to a mother who has chronic hepatitis B and, as such, by reason of the process of birth there is a 10 to 20 per cent chance that the baby has become infected during the process of birth.  The medical evidence is that there is about a 90 per cent chance that a newborn baby who has contracted the hepatitis B virus at birth will develop a chronic infection with hepatitis B.  If the infant does become chronically infected with hepatitis B there is a 25 per cent chance of developing the serious conditions of liver cirrhosis or liver cancer.  The evidence is that this would most likely develop in young adulthood and would be likely to end life prematurely.  The medical evidence is that the current treatments available for chronic hepatitis B infection are disappointing and have around a 30 per cent chance of success; further that treatment for chronic hepatitis B is usually delayed until adulthood because the treatments themselves are so toxic, and because it increases the chances of the treatments' success.

There is no way of telling whether or not this baby suffers from hepatitis B and it is not possible to test for this until the baby is nine months' old.  It is possible, however, to prophylactically treat against the possibility that the baby has hepatitis B.  The treatment for that is to give two intramuscular injections, one of hepatitis B immunoglobulin and one intramuscular injection of hepatitis vaccine.  Those injections are normally given together.  The hepatitis B immunoglobulin should be given within 48 hours of birth to maximise the chances of it being effective and it is normal to give the hepatitis B vaccine along with the hepatitis immunoglobulin although it could be given in a window of five to seven days after birth.

The parents of the infant are opposed to the baby being administered either the hepatitis B immunoglobulin or the hepatitis B vaccine.  They are opposed in general terms to vaccination although the father, who appeared before me, said that any particular occasion necessitating the consideration of whether or not a vaccine should be administered would be considered by him on its own merits.  He would not make a blanket rule against vaccination.  He said that if, for example, his child were to suffer an injury which might involve the risk of tetanus he would allow a tetanus vaccine to be given in that circumstance.

Associated with the conscientious objection to vaccination, the infant's parents have strong religious beliefs which sustain them in their opposition to this treatment.  The father expressed fear that the constituent parts of the vaccine for hepatitis B which would be administered as part of this treatment regime might harm his child either because it contained chemicals such as aluminium hydroxide, which he asserts is associated with the risk of Alzheimer's disease, or because it is based on a human plasma and therefore is, in his mind, likely to be associated with the risk of Creutzfeldt-Jakob disease.

The child's father made it clear he has wider philosophical concerns in relation to vaccination and drug use generally and believes that vaccines, in particular, are distributed often in accordance with financial agendas of pharmaceutical companies, rather than as being in the best interests of those to whom they are administered.

The medical evidence before me both from the treating neonatologist, and from an independent professor of infectious disease, is that the side effects of the injection of hepatitis B immunoglobulin and hepatitis B vaccine are minor and do not often occur.  Local inflammation at the injection point, irritability, flu-like symptoms and gastro-intestinal symptoms were mentioned by the treating neonatologist and in addition, fever was mentioned by the professor of infectious diseases.

The child's father, on behalf of the infant's parents, advances the case that on the medical evidence, there is a low percentage chance that his child has been infected with hepatitis B and even if his child has, there are still only percentage chances that his child will go on to develop hepatitis B, and then go on to develop either cirrhosis or liver cancer.  That is undeniable. However, the serious nature of the chronic hepatitis B infection and of liver cancer and cirrhosis mean that the standard of medical care is that treatment by injection of hepatitis B vaccine and hepatitis B immunoglobulin is administered when weighing the rare, minor and transient side effects of that treatment, against the very serious consequences which may flow from the development of a hepatitis B virus.  The medical profession considers it in the infant's best interest that these injections be administered.

I was referred to the case of Director-General, Department of Community Services: re Jules [2008] NSW SC 1193 which records that, in similar circumstances to this, an infant's parents were ordered to present him to a hospital so that the relevant intramuscular injections could be administered.

The application was made in the parens patriae jurisdiction and that jurisdiction is discussed in the case of re Jules and also discussed in the case of Department of Child Safety v. Y [1999] NSW SC 644. Clearly, I have jurisdiction to make orders in relation to the treatment of this infant and, on the material before me, I think it desirable in the child's interests that I do.

I was asked to make orders as to vaccination - or administration of hepatitis B vaccine – at two months, four months and six months of the infant's life.  I will not make orders in relation to that because I do not believe that more intrusive orders should be made against the parents' wishes than absolutely must be in the urgent circumstances in which this application has been brought on.  The infant's father, representing the interest of himself and his wife, has had the opportunity to read the material and make submissions to me on the application this evening but he has not had a chance to obtain legal advice.  That, of course, is because of the urgent circumstances in which the application arose.  Nonetheless, I think that I should confine any orders I make to those absolutely necessary in the short term for the welfare of this infant so that the child’s father and mother have the benefit of legal assistance should they wish to continue disputing treatment recommended by the State.

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HER HONOUR:  The orders that I make are:

(1) That the child's mother and the child's father are to present their child to the Emergency Department at the Royal Children's Hospital at Herston by 9 p.m. on 7 October 2011 in order that their child be given the medical treatment referred to in paragraph 2 of this order.

(2)  That on presentation of the child to the Emergency Department of the Royal Children's Hospital in accordance with order 1 above, a qualified medical practitioner may administer intramuscular injections of hepatitis B immunoglobulin and hepatitis B vaccine to the child as they deem reasonable in the child's interests.
(3)  I direct that the child's mother and the child's father may be present at the treatment described at paragraph 2 above, and

(4)  I direct that the child's mother and the child's father be given a copy of any writing on the vials of the hepatitis B vaccine and the hepatitis B immunoglobulin which is administered to the child and be permitted to take photographs of those vials.

(5)  No person shall publish the name of the child in connection with this proceeding or otherwise publish details about this proceeding which would be likely to allow identification of the child in connection with this proceeding.

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