Mercy Hospitals Victoria v D1
[2018] VSC 519
•31 August 2018
| 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, D1 has refused such consent. Being less than 18 years of age, D1 is a minor under law. D1’s mother, the second defendant (D2)[2], is also an adherent of the Jehovah’s Witness faith. She has informed the hospital that, if asked, she would not provide consent to the administration of blood or blood products to D1.
[2]Her name has been anonymised.
The hospital has brought an urgent application to this Court for a declaration as follows:
that the [hospital] is authorised to administer to [D1] blood and/or blood products as considered reasonably necessary by her treating medical practitioners to save her life or to prevent serious injury during the course of induction of labour, labour, caesarean section and related procedures and the postnatal period in regard to her pregnancy.
The application is brought in reliance upon the Court’s parens patriae jurisdiction, a jurisdiction ultimately derived from the Royal prerogative. In relation to children, it is directed to the protection of children who are not legally competent to look after themselves.
D1 opposes the making of the declaration. She does so because she opposes the administration of blood or blood products based on her desire to adhere to the religious principles of her faith which, she says, should be respected as an assertion of her personal autonomy. Further, she says that Parliament enacted s 24 of the Human Tissue Act1982 (Vic) (‘the HTA’) to allow for the administration of blood transfusions in emergency situations, and it is not currently clear whether the circumstances that would engage that provision have or will arise. Thus the Court should decline to exercise its parens patriae jurisdiction and leave it to the hospital to rely upon that statutory provision if those circumstances do arise.
Numerous questions arise in relation to this application and its particular circumstances:
(a) what orders if any should be made to protect the identity of D1 from being disclosed to the public;
(b) given that D1 is a minor, should the requirement in Order 15 of the Supreme Court (General Civil Procedure) Rules 2015 that she defend the proceeding through a litigation guardian be dispensed with;
(c) in its parens patriae jurisdiction, is this Court only concerned with the interests and well-being of D1 or must it also be concerned with the interests and well-being of her unborn baby, or of the baby when born;
(d) is this Court’s parens patriae jurisdiction affected by the Medical Treatment Planning and Decisions Act2016 (Vic) (’the MTPDA’) or the HTA;
(e) should this Court make the declarations sought?
I can quickly clear away the first three of these questions. For reasons given at the hearing I made a pseudonym order to protect the identities of the defendants. In addition, to further protect the identities of the defendants I made an interim suppression order under s 20 of the Open Courts Act2013 prohibiting the disclosure by publication or otherwise of any report of this proceeding, or of any information derived from it, that would identify or have the effect of identifying the defendants. I did so because I considered it necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that could not be prevented by other reasonably available means. In the context of this particular case, I had regard to the House of Lords decision in Scott v Scott[3] and the peculiar position which parens patriae proceedings occupy in respect of the open justice principle. The making of the order was supported by the parties to the proceeding.
[3]Scott v Scott [1913] AC 417.
Further, given the urgency of the matter and the fact that D1 is directly represented by counsel and instructing solicitor I consider it appropriate to dispense with the requirement under Order 15 that a litigation guardian be appointed for D1.[4] That order is also supported by both the hospital and D1. Finally, after discussion with the parties on the first day (which is recorded on transcript) I found it was unnecessary for the unborn baby of D1 to be separately represented at the hearing.
[4]Supreme Court (General Civil Procedure) Rules 2015, r 2.04.
These reasons therefore focus on the remaining two questions, namely whether the Court’s parens patriae jurisdiction is affected by certain statutes that provide for the making of medical treatment decisions and whether this Court should make the declaration sought.
Evidence
The hospital filed two affidavits of Simon John Cooke: one sworn 28 August 2018 and the other sworn 30 August 2018. By his first affidavit Mr Cooke exhibited parts of the medical and social work records of the hospital relating to D1 as well as a report prepared by Dr Jacqueline van Dam, the Director of Maternity Services at the hospital. Mr Cooke’s affidavit also disclosed that Dr van Dam had arranged for D1 to be examined by Associate Professor Campbell Paul, a consultant infant and child psychiatrist at The Royal Children’s Hospital, Melbourne, on 28 August 2018 in order to establish his opinion about the capacity of D1 to refuse her consent to the administration of blood or blood products in the course of, or following, the birth of her baby.
By the second affidavit, Mr Cooke exhibited two partially completed advance care directives signed by D1, some information given to D1 about advance care directives and the report of Associate Professor Paul. Both Dr van Dam and Associate Professor Paul were called to give evidence and were cross-examined.
The facts which I rely upon now are taken from the affidavits of Mr Cooke, the medical and social work records of the hospital in the report of Dr van Dam, and the report of Associate Professor Paul and the evidence they each gave at the hearing.
Hospital records
D1 was born overseas on 26 August 2001. She turned 17 less than a week ago. She arrived in Australia in 2009 as an eight-year-old with her family as refugees. Her parents have since separated and she lives with her mother, D2, and her six siblings. D1 informed the hospital that her pregnancy was a planned pregnancy with her former partner with whom she has had no contact for the past two months.
At 12 weeks of pregnancy, in early March 2018, she booked the birthing of her baby with the hospital. At that time she weighed only 44 kg, with a height of 150 cm. According to Dr van Dam she is “a very small built girl”.
The social work records of the hospital indicate that D1 had, throughout her pregnancy, been receiving some support from a refugee support agency and from the student well-being staff at her school. She was continuing with her studies and, apparently, was focused on her exams until they were completed in mid-June 2018. It was reported on 2 July 2018 that D1 had passed her year 10.
On 9 July 2018 the social work records reveal that a person from D1’s maternity support group was informed by D1 that she and her family were Jehovah’s Witnesses and that she did not believe in blood transfusions. There is no reference in the medical notes of the hospital about that issue at that time. On 31 July 2018 the social work records reveal that D1 was advised “as a priority” to organise an appointment with either the midwife or obstetrician to discuss an advanced care plan because the family were Jehovah’s Witnesses. Again, on 1 August 2018, the social work records refer to D1 being told of the importance of ensuring that the medical team were aware that the patient and her family were Jehovah’s Witnesses. On 7 August 2018 another social work record refers to the fact of D1’s Jehovah’s Witness faith and that she would decline blood products, again referring to the need for obstetric appointment.
The first date the medical record for D1 at the hospital makes any reference to D1’s Jehovah’s Witness faith is 7 August 2018, at which time D1 was 34.6 weeks pregnant. The medical record on that date contains this entry:
SW notes advise [D1] is Jehovah’s Witness. [D1] and mother confirmed this and will decline any blood products. Require OBS appointment to complete advance care directive/refusal of treatment form and arrange anaesthetic referral.
On 10 August 2018 the medical notes record that D1 had attended that day with her mother to discuss her treatment in light of her Jehovah’s Witness beliefs. The notes indicate that D1 included her brother in the discussion by telephone from interstate. The medical staff member asked D1 to have an open discussion with her family and clergy/elders and to put clearly in writing a plan for the blood products she would or would not accept in the event of requiring fluid or blood resuscitation. There was a note to the effect that ‘JVD’ (who I take to be Dr van Dam) was aware of the “current plan” and had a scheduled Obstetrics review on 15 August.
On 15 August 2018, when D1 was 36 weeks pregnant, notes of Dr van Dam’s consultation indicated that D1 attended with her mother and a person from D1’s Jehovah’s Witness community who I will call Jill.[5] Apparently, the discussion was postponed because D1 was “not ready to discuss” (I assume about her faith and her consent to accept blood products). She was informed she would need to give specific answers to what specific product or procedures she would accept. She was given written information about an advanced care directive (ACD, a written instruction under the MTPDA) and a form on which that directive could be given. Arrangements were made to have a further discussion with D1, D2, Jill and an elder (presumably of D1’s church), together with an interpreter for D2. Dr van Dam noted the need to review the option of having a child psychologist or psychiatrist present. Although there is a note for 22 August 2018 (when D1 was 37 weeks pregnant) there is no reference to any further discussions. The record notes that the baby was measured as being on the 88th percentile for growth.
[5]Jill is not her real name.
Dr van Dam’s report
In Dr van Dam’s written report she says that D1 disclosed to her maternity support group at 34 weeks gestation that she was of the Jehovah’s Witness faith and would refuse or blood products. That may be a reference to the entry on 9 July 2018 in the social work records I have referred to above. That entry was actually made about seven weeks ago, at closer to 30 weeks gestation.
Dr van Dam states that D1 had to be prompted several times before she informed her midwife of her faith and her refusal to receive blood or blood products, and had not completed the part on her registration form which requires details about her religion. She stated that D1 only revealed her refusal to her “care providers” at 37 weeks gestation when she “added this in after discussion with me about the importance of stating her preferences and the impact on her medical care”.
Dr van Dam’s report goes on to make these observations about D1:
[D1] is very quiet and polite and appears to rely on [Jill] and her mother to answer questions and when asked directly, refers to them before answering. I offered her [an] interpreter and she was (almost unusually so) upset with me for implying that she needed an interpreter. I did state that I think that her English is good, but that I consider that her mother needs an interpreter for complex discussions. I note, however that [D1] wrote on the hospital’s paperwork that her preferred language is [a language other than English].
I discussed with [D1] the risks of bleeding in labour as well as the implications of a large amount of blood loss, including death. She gave only one answer repeatedly: “I do not want blood”. I was not satisfied that [D1] has thought the issues through or has a grasp of the consequences. At our first visit on 15 August 2018 I felt that she was not sufficiently prepared to have this discussion as she had not yet read or considered any of the paperwork given to her by the midwife the week before – all pertaining to blood and blood products. I was not satisfied that she was aware of the different products (including which were blood and which fractions of blood et cetera) in circumstances in which blood or blood products might be offered. I postponed further blood product discussion to 22 August 2018 and ensured that we had an … interpreter present as well. I also outlined which questions I needed her to consider and gave her a printed list of these. She was reminded several times by social work in the week between these two visits (on 15 and 22 August 2018) to attempt to complete or think about the questions – her answer was that she was busy and would get to it. The Advance Care Directive (ACD) was then part-completed by her on 21 August and she brought this along to the 22 August visit. Furthermore, in my opinion, the ACD completed at home does not reflect her way of speaking or writing style and seems to me to have been completed with assistance by others.
[D1] seems to be of average intellect but is immature. She passed Year 10 at [school] this year and is planning to return to school in 2019. The school is supportive of this plan. [A staff member from her school] has spoken with our social worker and advise that [D1] has never been formally assessed and that the school considers that [D1] was “capable of processing information and making informed decisions]’s. My impression of [D1’s] understanding of the nature and consequence of her refusal of blood transfusion in a life-threatening situation, including the consequences for herself, her family and her child is limited. She still believes (naïvely) that all will be well and that if anything happens she will be protected by her faith. There appears to be a clear component in her discussions of wanting to please both her mother and [Jill] when refusing blood.
Dr van Dam stated that at their first consultation on 15 August, she had asked D1 why she did not carry the usual card carried by Jehovah’s Witnesses regarding blood product refusal. Jill replied on behalf of D1 saying that D1 had not yet been baptised and therefore was not recognised by the church to be able to carry the card. When asked why she did not complete the religion question on her registration form, again Jill answered on D1’s behalf saying that D1 had only just started her studies and did not yet feel comfortable stating that on the form. Dr van Dam said “these statements make me concerned that [D1] does not have the understanding or conviction to refuse the blood in case of dire emergency”. It was then that she arranged for D1 to be assessed by Professor Paul.
Dr van Dam’s report contains information about the risks associated with bleeding during pregnancy. In D1’s case, the risks are that it is her first baby and a big baby, and the labour will possibly be long or obstructed with a retained placenta. Dr van Dam explained that most of the bleeding usually happens immediately after birth, with a small percentage of bleeding occurring within the first six weeks of birth. Both types are considered to be postpartum haemorrhage (PPH), and can involve large amounts of blood loss over a short period of time. Blood loss of up to 500 millilitres (mL) is acceptable; between 500 and 1500 mL is considered PPH; and anything above 1500 mL is considered a massive PPH. The usual measures to limit blood loss include pre-emptive management to limit blood loss at birth, administration of the drug oxytocin after birth, additional drugs as second-line treatments in case of ongoing bleeding, and, if bleeding continues, management in theatre including, possibly, a laparotomy and ultimately a hysterectomy.
Dr van Dam says that blood and blood products (such as plasma and platelets) remain the basis of resuscitation after blood loss exceeding 20% of total blood volume. At that point the body will decompensate and the patient will show systemic signs of hypovolemic shock (fast heart rate, low blood pressure, pallor, decreased conscious state). Some of those symptoms, she explained, can be controlled by the infusion of clear fluids and volume expanders that are not blood products, but those products do not assist with the oxygen carrying capacity of blood. With ongoing blood loss patients can develop disseminated intravascular coagulopathy (DIC) which will contribute to further blood loss as the clotting factors are all consumed and the patient cannot form a blood clot. Transfusion with whole blood and blood products allows replacement not only of the volume but also the oxygen-carrying capacity and clotting factors in blood. Ongoing blood loss without replacement of blood will lead to multi-organ failure and, ultimately, death.
Associate Professor Paul’s report
Associate Professor Paul is a consultant child and adolescent psychiatrist at the Royal Children’s Hospital Melbourne. He has had 37 years of experience there. He saw D1 for two hours on Tuesday 28 August. He was asked to witness her completing an ACD made under the MTPDA. Ultimately he declined to do so.
Section 17 of the MTPDA requires that any witness to an ACD must certify that the person giving it appeared to have “decision-making capacity” in relation to each statement and, in particular, appeared to understand the nature and effect of each statement in the directive. “Decision-making capacity” is defined in s 4 to require that the person be able to understand the information relevant to the decision and the effect of the decision, retain that information to the extent necessary to make the decision, use or weigh that information as part of the process of making a decision and communicate the decision on the person’s views and needs as to the decision in some way.
Associate Professor Paul said that although D1 attended with her mother and Jill he spoke with her alone extensively.
D1 told him she had attended Kingdom Hall (the name given to the church of a Jehovah’s Witness) since she had been in a refugee camp with her family overseas. She had continued attending the Kingdom Hall as a child going to Sunday school when the family lived in rural Victoria, and in more recent years has attended generally once or twice a week including taking formal Bible studies. D1 told Associate Professor Paul that she was not yet baptised but liked reading books from the Kingdom Hall, especially Bible stories.
D1 told him she had been in a relationship with the father of her child for some months before becoming pregnant. She also said she was happy to become pregnant. She knew that having sex before marriage was against the values of the Jehovah’s Witness community. Although she had broken the community rules she said she may be forgiven if she is remorseful.
She reiterated to Associate Professor Paul a number of times, and in writing, that she did not want to receive any blood or blood products during the course of her pregnancy or delivery even if there were very serious complications, and even if she might die without them.
Associate Professor Paul considered D1 was lucid, and fully coherent. Having conducted a mental health assessment he did not believe she had any significant ongoing major mental health disorder.
He examined her attitude towards potential treatment with human blood products. He said she willingly completed the ACD in his presence with no pressure from others. She was very clear in a statement both written and verbal that should she become acutely ill during pregnancy or delivery and require emergency treatment she refused any human blood products. She said “the Bible says it’s wrong to eat or drink blood if you lose blood and have to let it go and pour it out on the floor.” She said her elders told her it was her choice and that they could not force her. But she said it was Jehovah who helped her make that decision and she did not want any blood products.
As to her belief about death, she told Associate Professor Paul that she believed that if she was to die she would have a new life in paradise, that she wanted to make Jehovah happy and that she would rather die than have a blood transfusion. When asked about the potential impact on her baby if there were serious complications during labour, she said that she had not thought about it. Then she said, “if the baby has to die, she has to die”.
Associate Professor Paul believed that D1 had “a clear and consistent belief that she must not receive human blood products”. D1 told him she held that belief freely and was not forced by anyone else to believe it. Nevertheless, Associate Professor Paul thought it was “possible” that D1 was “to some degree” dependent on her family and community in making decisions regarding her life so as to accord with Jehovah’s Witness’ beliefs and values. He said D1 was aware she had transgressed a major rule not to have sexual relationships before marriage. He thought it was “possible” that she felt dependent on the grace of her community as a result of her history of trauma and dislocation as a refugee. He also thought that because of some of her past behavioural problems, D1 may feel unduly dependent on her community and feel the need to comply with its strict religious values and rules in her present circumstances.
He then expressed three important views:
(a) he was uncertain D1 had been able to fully weigh up all of the information relevant to making a decision to refuse human blood products in an emergency;
(b) he did not believe D1 had given due consideration to the impact of her refusal of blood products and her possible death upon the life of her baby, and the impact of that upon the baby’s father and others in her family; and
(c) he did not believe D1 had considered the impact upon her child of being deprived of its mother for the rest of its life or of the possible disability her baby might experience in the course of her labour if she was compromised by not having access to blood products.
In summary, although he understood D1 had been clear about her wishes, he was not certain she had been able to explore and completely understand the full implications and complexity of the impact upon her, and upon her about-to-be born baby and her family, of such a grave decision to refuse human blood products should they be absolutely medically necessary. For that reason he felt unable to witness D1’s ACD.
Other considerations
D1 and D2 declined to give any evidence on the application. However through an interpreter, in final submissions, D2 made several statements to the Court which were in the nature of evidence. She was not tested on them. Also, it was a little difficult to understand whether she was speaking of her views or those of D1, but I record them here:
(a) she believed D1 would suffer psychological harm by being forced to have a blood transfusion;
(b) being forced to have a blood transfusion would be like having violence done to her, or being raped;
(c) she is not convinced there may not be side-effects from a blood transfusion;
(d) she wants to do the right thing by Jehovah;
(e) she, D2, has herself had 9 children – including one by caesarean section – without a blood transfusion.
Observations concerning D1
It is necessary I record my observations of D1, admitting the limitations of my capacity to do so given the urgency in which the matter has arisen and, more particularly, the imperfections inherent in making judgments of the kind I am attempting to make.
First, it appears that D1 is of at least average intellect for her age and capable of processing information and making informed decisions. She has no apparent mental health disorder. On the other hand, it is not suggested she is conspicuously intelligent for her age or advanced in her thinking.
Secondly, some doubt is cast upon her maturity as a just-turned 17-year-old. Dr Van Dam, who has seen her twice, characterised her has “immature”. Associate Professor Paul did not express himself in quite the same terms although his comments on D1’s possible “dependence” on her family and community, which I shall come to shortly, may amount to a similar assessment although one from a different angle.
Thirdly, both Dr Van Dam and Associate Professor Paul expressed reservations about D1’s understanding of the nature and consequence of the refusal of a blood transfusion in a life-threatening situation. Those consequences need to be understood in their full dimension – first, the effect on D1’s life and safety; secondly, any jeopardy to the health of the baby and to the welfare of the baby should D1 die or become compromised in her own health; and, thirdly, the impact on D1’s family and friends should she die or become seriously compromised in her health. Dr Van Dam thought her understanding was “limited”. Associate Professor Paul did not believe D1 had considered or given due consideration to those matters. In short he was not certain she had completely understood the full implication and complexity of the impact of her decision.
Fourthly, several factors combined to cast doubt on the maturity and solidity of D1’s personal adherence to the principles of the Jehovah’s Witness faith. This, clearly, is an awkward topic and the Court is highly attuned to the need to be as sensitive as possible in making these observations. But, in the end, a matter for consideration is the extent to which D1’s choice reflects a deeply held faith conviction that is part of who she is and thus deserves to be weighed heavily in the balance. In this regard I note the following:
(a) Associate Professor Paul thought she had expressed a clear and consistent belief she must not receive human blood;
(b) D1 has been a member of the Jehovah’s Witness faith community with her family at least since she was a young child, attending church first overseas and later in regional Victoria and now more recently, in a more active way locally including attending Bible studies;
(c) D1 is not yet a baptised member of the Jehovah’s Witness community;
(d) D1 did not immediately volunteer her religion to the hospital or make objection to taking blood during the early stages of her pregnancy management;
(e) D1’s attention to discussing and then making a choice about her medical treatment was delayed and deferred by her seemingly because she had other priorities – possibly her studies;
(f) Associate Professor Paul expressed in various ways the possibility that D1 feels dependent on her faith community due to a sense of gratitude for its past support but, more subtly, because of her awareness of her past transgressions of the community’s beliefs and values.
As a result of these various strands it is difficult to be confident that D1’s presently expressed choices are the product of an independently formed, carefully considered and long-held adherence to the tenets of the Jehovah’s Witness faith.
Parens patriae jurisdiction
The jurisdiction of this Court known as the parens patriae jurisdiction is preserved in Victoria by s 85(3) of the Constitution Act.[6] That jurisdiction, when concerning the protection of children, was described by the High Court of Australia in Marion’s Case.[7] It is an inherent jurisdiction to do what is for the benefit of the child.[8] Further, the High Court pointed out in Marion’s Case that although in a sense the court is supervising the exercise of care and control of infants by parents and guardians, the court’s care is a direct responsibility for those who cannot look after themselves.[9]
[6]Constitution Act 1975 (Vic); see Re BETH (2013) 42 VR 124, 148 [116] (‘Re BETH’).
[7]Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218.
[8]Ibid 258.
[9]Ibid 259.
I respectfully adopt the relevant parts of the succinct summary of the jurisdiction given by Osborn J in Re BETH[10], namely that it:
[10]Re BETH (2013) 42 VR 124, 151 [127].
(a) is very broad;
(b) is essentially a protective one;
(c) is governed in its exercise by the consideration of the best interests of the child; and
(d) must be exercised with caution.
In Marion’s Case the High Court laid down the common law in Australia with respect to the legal capacity of minors to give or refuse consent to medical treatment. The court summarised and approved a principle that has come to be known as “Gillick-competence”, an expression taken from the proposition endorsed by the House of Lords in Gillick v West Norfolk AHA.[11] As summarised by the High Court:
The proposition endorsed by the majority in that case was that parental power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacity and maturity grow and that this rate of development depends on the individual child… A minor is, according to this principle, capable of giving informed consent when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.[12]
[11][1986] AC 112.
[12]Marion’s Case (1992) 175 CLR 218, 237.
There have been several cases in which courts in Australia, in exercise of the parens patriae jurisidiction, have been asked to authorise the administration of blood or blood products to a minor who, along with his or her parent, and for reasons associated with the beliefs of Jehovah’s Witnesses, have refused to give such consent. One was a decision of Pullin J in Minister for HealthvAS.[13] Another is the decision of the New South Wales Court of Appeal in X v Sydney Children’s Hospital Network approving the decision of the judge at first instance.[14] In each case, in broad terms, the child was being treated for aggressive lymphoma; the cancer treatment resulted in severe anaemia; without blood transfusion the anaemia would likely bring about death; but, due to adherence to the principles of the Jehovah’s Witness faith, the child and parent refused blood transfusion.
[13](2004) 33 Fam LR 223 (‘AS’).
[14](2013) 85 NSWLR 294 (‘X’).
In AS, Pullin J held that the role of the court was to exercise an independent and objective judgment and balance the advantage or disadvantage of the medical step under consideration. While the parents’ wishes may be relevant, his Honour held they were not determinative. In X, the NSWCA appeared to approve Pullin J’s view noting that his Honour had:
… identified the court’s “independent and objective judgment” as to the best interests of a child as imposing a limit on the power of the parents and of the child to give or withhold consent at will.[15]
[15]Ibid 302 [31].
In Pullin J’s view the paramountcy of the welfare of the child meant that protection of the child was to be elevated above all other interests, although those other interests were not to be disregarded. That meant, in his Honour’s opinion:
Where faced with the stark reality that the child will die if lifesaving treatment is not performed which has a good prospect of a long term cure, it is beyond doubt that it is in the child’s best interests to receive that treatment.[16]
[16]AS (2004) 33 Fam LR 223, 228 [21].
Accordingly, despite the child’s (and his parents’) choice as to medical treatment being “governed by his religious beliefs” his Honour considered that the:
…justification for overriding his wishes and that of his parents is that on the evidence his health and even his survival are seriously at risk unless steps are taken to give him a transfusion if the need arises.[17]
[17]Ibid 228 [23].
In X, Basten JA addressed the significance and weight to be given to religious beliefs and choice at some length. Noting that religious beliefs, particularly minority religious beliefs, are not to be disregarded because they may be deemed irrational by broader community standards, his Honour observed that religious beliefs are internationally accepted as an aspect of an individual’s fundamental autonomy which the state cannot interfere with and must not disregard.[18] Indeed, in Victoria that notion is most closely enshrined in s 14 of the Charter of Human Rights and Responsibilities Act,[19] even though that legislation does not directly impact the Court’s exercise of its parens patriae jurisdiction. [20]
[18]X (2013) 85 NSWLR 294, 309 [64].
[19]Charter of Human Rights and Responsibilities Act 2006 (Vic).
[20]See Re BETH (2013) 42 VR 124, 171 [199].
Basten JA went on to say, of religious beliefs motivating medical treatment choices, that:
Such a motivation is likely to be one to which the court will accord respect and weight, other things being equal. To accord a religious belief weight is not to treat it as determinative. There may be cases in which the strength with which a belief is held, and the distress which would be caused by treatment which overrode that belief, might diminish the effectiveness of the treatment.[21]
[21]X (2013) 85 NSWLR 294, 309 [64] - [65].
Earlier in his reasons, Basten JA quoted a statement made by the Ontario Court of Appeal in Malette v Shulman.[22] The statement was not made in the context of the exercise of the parens patriae jurisdiction but, to the extent that autonomy of choice is a factor to be taken into account for the “mature minor”, I consider it to be helpful. The court said:
The state’s interest in preserving the life or health of a competent patient must generally give way to the patient’s stronger interest in directing the course of her own life… Recognition of the right to reject medical treatment cannot, in my opinion, be said to depreciate the interest of the state in life or in the sanctity of life. Individual free choice and self-determination are themselves fundamental constituents of life. To deny individuals freedom of choice with respect to their healthcare can only lessen, and not enhance, the value of life.[23]
[22](1990) 72 OR (2d) 417 (Ontario Court of Appeal).
[23]X (2013) 85 NSWLR 294, 308 [58] (Basten JA) quoting Malettev Shulman (1990) 72 OR (2d) 417 (Ontario Court of Appeal), 429h-430b.
For myself, I would have thought that, consistent with principle, regard for an individual’s religious conviction might, of itself, in an appropriate circumstance, justify the conclusion that the welfare and best interests of the child are protected by allowing the child’s choice based upon religious conviction to stand, notwithstanding the threat to life or safety which that choice will or may bring. In Children, Youth & Women’s Health Service Inc v YJL & Ors, White J thought the court should be concerned with a child’s spiritual welfare as much as it is with the child’s physical welfare.[24]
[24]Children, Youth & Women’s Health Service Inc v YJL & Ors (2010) 107 SASR 343, 350 [41].
Ultimately, however, in the exercise of the parens patriae jurisdiction on behalf of a child, the particular attributes of the child must remain in clear focus. Here again, with respect, Basten JA provided helpful guidance when considering a choice made by a child, even a child thought to be Gillick-competent:
The interest of the state in preserving life is at its highest with respect to children and young persons who are inherently vulnerable, in varying degrees. Physical vulnerability diminishes (usually) with age and is at its height with respect to babies. Intellectual and emotional vulnerability also diminish with age but, as the facts of this case illustrate, may be a function of experience (including but by no means limited to education) as well as age. Vulnerability lies at the heart of the disability identified by legal incapacity.[25]
[25]X (2013) 85 NSWLR 294, 308 [60] (emphasis added).
Statutory framework
It is necessary to consider at least two statutes which may bear upon this Court’s exercise of jurisdiction in this matter. One is the HTA and the other the MTPDA.
The Human Tissue Act
Section 24 of the HTA makes provision for blood transfusions to children without consent. In defined circumstances, it relieves medical practitioners from criminal liability for administering a blood transfusion to a child where the consent of a parent of the child or some other person having authority to consent has been refused or not obtained. It applies where, in the opinion of a registered medical practitioner, the blood transfusion is a reasonable and proper treatment and without it the child is likely to die. A second concurring medical opinion must also be obtained or, in the case of an emergency or the unavailability of a second opinion, where specified senior hospital officers give consent.
Section 24(2) provides that if a blood transfusion is administered to a child in accordance with the section the transfusion is, for all purposes, deemed to have been administered or taken with the consent of a parent of the child or of a person having authority to consent to the administration of the transfusion.
I was informed by the hospital that it considers it could administer a blood transfusion to D1 in the circumstances contemplated by, and in accordance with the procedures outlined in, s 24 and rely upon it for its own protection. Evidently, it has some concern about the extent of that protection. It has chosen not to rely upon that protection but to afford D1 the opportunity to have this Court consider her competence in the exercise of its parens patriae jurisdiction.[26] Its motivation for bringing the application ought not to affect my consideration of it.
[26]Cf AS (2004) 33 Fam LR 223, 230 [32].
In AS, Pullin J was confronted with an application for an order permitting medical staff at a hospital to give a blood transfusion to a child who objected on the basis of their Jehovah’s Witness belief. At the time Western Australia had a similar although not identical provision to s 24 of the HTA. Pullin J considered that the legislation was intended to “benefit the welfare of children”,[27] and existed to avoid the cumbersome procedure of an application to the court in the parens patriae jurisdiction.[28] However, because of some anxiety amongst medical practitioners as to whether the relevant provision would provide them with protection, Pullin J made the orders to provide the certainty the medical staff sought.[29]
[27]Ibid 229 [26].
[28]Ibid 230 [30].
[29]Ibid [32].
I am not convinced I should equate the welfare of the child, as understood in the parens patriae jurisdiction, with the interests of the child as protected by the HTA. The relevant provisions of that Act are only engaged if and when the child is “likely to die”, and authorises life-saving blood transfusions on medical considerations alone. As noted, the parens patriae jurisdiction’s concern for the welfare of the child travels beyond a concern only for physical survival although, of course, that concern is an extremely important one.
This can be demonstrated another way. If a hospital administered a blood transfusion to save a child’s life in the legitimate exercise of the s 24 power, against the wishes of the parent, the hospital avoids criminal liability and the parent is deemed to have consented “for all purposes”. But, as noted, that does not answer the question with which the parens patriae jurisdiction is concerned. The parens patriae jurisdiction exists so that, in appropriate circumstances, even the parents’ wishes (deemed or otherwise) are overridden.
So, despite the existence of s 24 of the HTA, the parens patriae jurisdiction serves a vital purpose beyond the narrower concern of that Act. The scope of the protective jurisdiction is larger, to take into account all of the welfare interests of the child – medical, spiritual, personal autonomy and identity. The two do not cover identical territory.
The Medical Treatment Planning and Decisions Act
The MTPDA came into force on 12 March 2018. Relevantly, one of its main purposes was to provide for a person to execute an ACD that gives binding instructions or expresses the person’s preferences and values in relation to the person’s future medical treatment.[30] An ACD is a document that sets out a person’s binding instructions or preferences and values in relation to the medical treatment of that person in the event that the person does not have decision-making capacity for that medical treatment.[31] Any person (including a child) may give an ACD if the person has decision-making capacity and understands the nature and effect of each statement in the directive.[32] Earlier in these reasons I described what the Act means by “decision-making capacity”.[33]
[30]MTPDA s 1(a).
[31]Ibid s 12(1).
[32]Ibid s 13.
[33]See para [27] above.
In an emergency, a health practitioner is not permitted to administer medical treatment to save a person’s life or to prevent serious damage to health if the practitioner is aware the person has refused the particular treatment or procedure by way of an instructional directive.[34] But, importantly, that provision, falling in Part 4 of the Act, does not affect the operation of s 24 of the HTA.[35] In other words, even if the child gave an instructional ACD to refuse consent for a blood transfusion,
s 24 of the HTA would still permit a hospital to administer blood in order to save the child’s life without rendering the hospital criminally liable. Indeed, providing s 24 was complied with the procedure would be deemed to have taken place with the parents’ consent.
[34]MTPDA s 53(2).
[35]Ibid s 48(2).
To the extent any question arises whether the regime provided under the MTPDA for children to make ACD’s effects or limits this Court’s parens patriae jurisdiction in relation to children, three things can be noted:
(a) it would take the clearest language to displace the Court’s jurisdiction,[36] and no such clear language exists;
(b) there is no statement made under s 85 (5) of the Constitution Act to repeal, alter or vary s 85 (3) of the Act which confers the Court’s parens patriae jurisdiction; and
(c) in the Second Reading Speech introducing the Bill to Parliament, the Minister for Health expressly stated that the Bill would not remove the parens patriae jurisdiction of this Court.[37]
[36]See Re BETH (2013) 42 VR 124, 150 - 151 [124] (Osborn JA) quoting Johnson v Director General of Social Welfare (Victoria) (1976) 135 CLR 92, 97 (Barwick CJ).
[37]Victoria, Parliamentary Debates, Legislative Assembly, 14 September 2016, 3498 (Jill Hennessy, Minister for Health).
In any event, no ACD was certified for D1 and so none is in force. Thus, no occasion arises to consider if and to what extent a binding ACD should affect this Court’s exercise of its protective jurisdiction.
Should the declaration be made?
The question is whether the best interests of D1 are furthered by:
(a) authorising the hospital to administer a blood transfusion if necessary to save her life or prevent serious injury; or
(b) respecting her wishes, based upon her religious faith, that she not be administered a blood transfusion even if that means she will die or suffer serious injury in the delivery of her child.
D1 submits that her opposition to the administration of a blood transfusion should not be regarded as mere wishes, but the assertion of personal autonomy in the desire to adhere to her particular religious principles.
In a careful submission, counsel for D1 emphasises the following points:
(a) the Court’s parens patriae jurisdiction ought to be exercised sparingly and with great caution when doing so is to override the express wishes of a child;
(b) D1’s opposition to the administration of blood or blood products is based on her desire to adhere to the principles of her faith;
(c) in enacting s 24 of the HTA, Parliament has already made statutory provision for the administration of blood transfusions in emergency situations;
(d) the hospital has not identified or complained of any lacunae in the HTA provision;
(e) it is currently unclear whether the risks referred to by Dr Van Dam will materialise; and
(f) it is not currently the case that D1 is “likely to die” without the administration of a blood transfusion and therefore s 24 of the HTA is not yet engaged.
I am not persuaded that the existence of an alternative course in s 24 of the HTA should have any significant bearing on my determination of what is in the best interests of D1. That course, self-evidently, is not currently engaged so it is not to the point to observe that D1 is not, at this moment, likely to die. As I noted earlier, the parens patriae jurisdiction, now invoked, has a wider purview of the interests of the child beyond mere physical survival. It is now that wider view that is in play.
The critical issue before the Court now is whether it considers that the expressed view of D1 and her mother D2 should be allowed to direct the hospital in its medical treatment should an emergency arise and her life is put at stake without a blood transfusion. In view of the potential for extremely grave consequences if D1’s choice were allowed to direct her treatment, I must consider her level of maturity and her understanding of what her best interests are, so as to determine if she is able to make such a choice about her medical treatment.
On the authorities, I should consider whether she has sufficient understanding and intelligence to enable her to understand fully what is proposed and the consequences of her decision. I should form a view about the extent to which her choice is a true reflection of who she really is, and what her beliefs really are, as opposed to the product of other forces. That should lead me to pay attention to the demonstrated conviction of the beliefs that she says are driving her decision, as best I can.
In final submissions, the hospital said it was prepared to give an undertaking to the Court, as a condition of any declaration, to first use all strategies other than the transfusion of blood or blood products which in the opinion of two registered medical practitioners are reasonably available and clinically appropriate to attempt to avoid D1’s death or serious injury. It is also willing to undertake only to give a blood transfusion on the concurring opinion of two registered medical practitioners. Those undertakings, if required, may alleviate, even if only to a small degree, the sense of violation D1 may feel: that is, through understanding that blood transfusion was withheld until all other reasonably available strategies were tried first and, in the final analysis, was only undertaken on the opinion of two doctors in order to save her life or avoid serious injury.
Taking into account these matters and the observations I have made, I am not satisfied D1 does have a sufficient understanding of the consequences of her choice. I am not convinced she has based her choice on a maturely formed and entrenched religious conviction. Put another way, I am not convinced that overriding her expressed choice would so rob her of her essential self as to outweigh the loss she would suffer through losing her life or sustaining a catastrophic injury. In summary, I do not consider that allowing her, in effect, to choose to die or only survive with serious injury is in her best interests taking into account a holistic view of her welfare (physical, spiritual and otherwise).
To the extent that her psychological and spiritual welfare may be addressed by her knowing that a blood transfusion was only administered as a last resort and upon very carefully considered medical opinion, I think it is appropriate that any declaration be made upon the undertakings that the hospital agrees to give.
Accordingly,
(a) UPON the plaintiff undertaking to use all strategies other than the transfusion of blood or blood products which in the opinion of D1’s treating medical team are reasonably available and clinically appropriate with the aim of attempting to avoid D1’s death or serious injury,
(b) I DECLARE that the plaintiff is authorised to administer to D1 blood and/or blood products as considered reasonably necessary by two registered medical practitioners to save her life or to prevent serious injury during the course of induction of labour, labour, caesarean section and related procedures and the postnatal period in regard to her current pregnancy.
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