Director General of Department of Community Welfare v T'Hart & Ors [2003] WASCA 110
Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644
Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112
In Re D (A Minor) [1976] Fam 185
Jungarrayi v Olney, Aboriginal land Commissioner (1992) 105 ALR 527
P v P (1994) 181 CLR 583
Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557
Re A (children) (conjoined twins) [2000] 4 All ER 961
Re B (A Minor) (Wardship Medical Treatment) [1981] 1 WLR 1421
Re Baby A [1999] NSWCA 787
Re L (1998) 2 FLR 810
Re McGrath (Infants) [1983] 1 Ch D 143
Secretary, Department of Health and Community Services v LMB & SMB (1992) 175 CLR 218
Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 27 ALR 367

Case(s) also cited:

Chignola v Chignola (1974) 9 SASR 479
G v P [1977] VR 44
Hodak & Hodak v Newman (1993) 115 FLR 1
K v Minister for Youth and Community Services; Re Infant K (1982) 8 Fam LR 250
Re C (a minor) (detention for medical treatment) [1997] 2 Fam Law R 180
Re E (a minor) (wardship, medical treatment) [1993] 1 Fam Law R 386
Re Heather [2003] NSWSC 532
Re L (medical treatment, Gillick Competency) [1998] 2 Fam Law
Re R (a minor); In re (wardship, consent to treatment) [1992] Fam 11
Re W (a minor) (medical treatment, courts jurisdiction) [1992] 3 WLR 758
Robinson v Field; Field v Field (1981) 7 Fam LR 866

PULLIN J: This is an application by the Minister for Health seeking an order authorising the medical staff at the oncology ward at PMH to give certain blood transfusions to an infant who I will call "L" and to direct L to undergo such treatment. The precise transfusions and the circumstances in which they are to be given are set out in the originating motion as follows:
"(i)if active and ongoing bleeding from any site in his body is present and his platelet count has dropped to less than 10x10⁹ per litre; or.
(ii)if he is…

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 Minister for Health v AS

Details

AGLC: Minister for Health v AS [2004] WASC 286
Case: [2004] WASC 286
Decision Date: 17 DECEMBER 2004

CaseChat Overview and Summary

In the case of Minister for Health v AS, the Minister for Health sought an order under the Family Law Act 1975 (Cth) to authorise medical treatment for a minor child, AS, despite the child's refusal and the objections of the child's parents. The case was heard by the Family Court of Australia, which was required to determine whether the court's parens patriae jurisdiction could be exercised to overrule the child's wishes in the best interests of the child.

The legal issues before the court involved the extent of the court's power to make decisions about medical treatment for a child when the child's decision conflicts with that of their parents and the medical profession. The court had to balance the child's right to autonomy and the right to refuse treatment against the parents' right to make decisions for their child's welfare and the medical professionals' recommendations based on the child's best medical interests. The court also had to consider the principles of the United Nations Convention on the Rights of the Child, which Australia has ratified, and how these principles interact with domestic law.

The Family Court found that while the child had a right to make decisions about their own body, this right was not absolute, and the court could intervene when the child's decision would result in significant harm. The court emphasised the importance of the child's welfare as the paramount consideration and held that the proposed medical treatment was necessary to prevent serious harm to the child's health. The court concluded that it was in the child's best interests to proceed with the treatment despite the child's objections. The court made an order authorising the medical treatment, and the parents were directed to ensure their child received the treatment.

Orders