Mercy Hospitals Victoria v D1 - [2018] VSC 519

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S ECI 2018 01022

MERCY HOSPITALS VICTORIA LTD	Plaintiff
v
D1	First Defendant

and

D2	Second Defendant

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 & 31 August 2018
DATE OF JUDGMENT:	31 August 2018
CASE MAY BE CITED AS:	Mercy Hospitals Victoria v D1 & Anor
MEDIUM NEUTRAL CITATION:	[2018] VSC 519

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COURTS AND JUDGES — Parens patriae jurisdiction — Pregnant teenage child —Declaration sought by hospital authorising doctors to administer blood products to a Jehovah's Witness child to save her life or prevent serious injury during child birth — Whether order should be made in opposition to the wishes of the child and her mother — Mature minor — Adherence to religious convictions — Vulnerability — Best interests of child — Relevant factors — Interaction between the Court’s parens patriae jurisdiction and the Human Tissue Act1982 — Medical Treatment Planning and Decisions Act2016, considered — Minister for HealthvAS (2004) 33 Fam LR 223, considered — X v Sydney Children’s Hospital Network (2013) 85 NSWLR 294, considered — Declaration made in exercise of jurisdiction.

PRACTICE AND PROCEDURE — Open justice principle — Application by hospital for orders protecting the identities of the defendants from being made public — Whether order necessary to prevent a real and substantial risk of prejudice to the proper administration of justice — Parens patriae jurisdiction — Scott v Scott [1913] AC 417, considered — Pseudonym order made — Interim suppression order made — Open Courts Act2013, s 20.

PRACTICE AND PROCEDURE — Requirement in Order 15 of the Supreme Court (General Civil Procedure) Rules 2015 that the child defendant defend the proceeding through a litigation guardian — Urgent proceeding — Child directly represented by counsel and instructing solicitor — Compliance with requirement dispensed with — Supreme Court (General Civil Procedure) Rules 2015, r 2.04.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Keeling	Mercy Health
For the First Defendant	Mr R Ajzensztat	Gadens

The Second Defendant appeared in person

HIS HONOUR:

The first defendant (D1)[1] is a 17 year old woman who is 38 weeks pregnant. She consented to induction of labour to take place very shortly at a hospital operated by the plaintiff, Mercy Hospitals Victoria Ltd (the hospital). She has also consented that, if necessary, a caesarean section be performed to deliver her baby. She is of very small stature, it is her first baby and the baby is quite large so the risk of requiring a caesarean section delivery and of associated postpartum haemorrhage is a significant one.
[1]Her name has been anonymised.

D1 is an adherent of the Jehovah’s Witness faith. The hospital sought her consent to the administration of blood or blood products during or after delivery, if necessary to prevent serious injury or save her life. Because such administration is contrary to her faith as a Jehovah’s Witness,…

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.

Continue reading Mercy Hospitals Victoria v D1

Details

AGLC: Mercy Hospitals Victoria v D1 [2018] VSC 519
Case: [2018] VSC 519
Decision Date: 31 August 2018

CaseChat Overview and Summary

The case of Mercy Hospitals Victoria v D1 involved a dispute between a hospital and a pregnant teenage child, who was a Jehovah’s Witness, and her mother. The hospital sought a declaration to authorise doctors to administer blood products to the child during childbirth to save her life or prevent serious injury. This was against the wishes of the child and her mother, who adhered to the religious convictions of the Jehovah's Witness faith, which opposes blood transfusions. The legal issues in the case centred on whether the court should make an order in opposition to the child and her mother's wishes, and the factors relevant in determining the best interests of the child, including her vulnerability and adherence to religious convictions.

The court considered the exercise of its parens patriae jurisdiction in making a declaration to protect the child's best interests, despite her and her mother's objections. The court examined the interaction between its jurisdiction and the relevant legislative framework, including the Human Tissue Act 1982 and the Medical Treatment Planning and Decisions Act 2016. It also considered relevant case law, such as Minister for Health v AS and X v Sydney Children’s Hospital Network. The court found that the child's vulnerability and adherence to religious convictions were relevant factors but did not outweigh the need to protect her life and prevent serious injury. The court made a declaration in exercise of its jurisdiction, authorising the administration of blood products.

The court also addressed the hospital's application for orders protecting the identities of the defendants from being made public. The court considered the open justice principle and whether an order was necessary to prevent a real and substantial risk of prejudice to the proper administration of justice. The court made a pseudonym order and an interim suppression order under the Open Courts Act 2013, s 20. The court also dispensed with the requirement in Order 15 of the Supreme Court (General Civil Procedure) Rules 2015 that the child defend the proceeding through a litigation guardian, as the child was directly represented by counsel and an instructing solicitor in the urgent proceeding. The court considered the circumstances of the case and the need for expediency in making its decision.

Orders