Re AB

[2019] NSWSC 316

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Re AB [2019] NSWSC 316

Hearing dates:

20 and 21 March 2019

Date of orders:

20 March 2019

Decision date:

21 March 2019

Jurisdiction:

Equity - Duty List

Before:

Kunc J

Decision:

Orders permitting medical treatment continued

Catchwords:

FAMILY LAW - Children – Parens patriae jurisdiction – Orders authorising Secretary to permit medical treatment of child under the parental responsibility of the Minister

Legislation Cited:

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

Cases Cited:

Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1991-1992) 175 CLR 218

Category:

Procedural and other rulings

Parties:

Secretary, Department of Family and Community Services (Plaintiff)

  The Mother (First Defendant)
The Father (Second Defendant)
AB (Third Defendant)

Representation:

Counsel:

 

K Shea (Plaintiff)

  Solicitors:
Acting Crown Solicitor for NSW (Plaintiff)
K Wooi (independent solicitor for AB)

File Number(s):

2019/83327

Publication restriction:

No

EX TEMPORE JUDGMENT (REVISED)

Summary

1. These proceedings concern AB. He is a teenage boy who is currently in a medically induced coma in a Sydney hospital. This judgment sets out my reasons both for orders that I made last night at the end of a hearing conducted at the hospital for his treatment to continue, and for dismissing an oral application made by AB's mother this afternoon that her son be woken up and returned to the care of his parents.

Background

2. By an order of the Children's Court made earlier this year under s 69 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), parental responsibility for AB has been allocated to the Minister for Family and Community Services. The Secretary of that department is the plaintiff in these proceedings (the "Secretary"), the first defendant is AB's mother (the "Mother") and the second defendant is AB's father (the "Father").

3. The Mother has commenced proceedings in the Common Law Division to set aside the order of the Children's Court. By orders made by Pembroke J sitting as Equity Division Duty Judge last Friday, 15 March 2019, those Common Law Division proceedings now travel with these proceedings. Beyond noting the existence of those Common Law proceedings, it is not necessary for me to say any more about them for present purposes.

4. It is clear from the evidence that AB's medical condition presents a rare and difficult case. AB has been diagnosed as level 3 autistic. Until the order made by the Children's Court, he was being cared for by his parents. Whether or not as a consequence of, or related to his autism, the problem which has brought matters to the present urgent pass is that AB has been very particular and obsessive in relation to his eating habits. Summarising the Secretary's evidence, AB was at the point of being in danger of starving himself to death. That conclusion is disputed by the Mother.

The parens patriae jurisdiction is invoked

5. Until last Friday AB was in a hospital outside of Sydney. His condition was thought sufficiently serious that he should be moved to a hospital in Sydney. The Secretary was concerned that the powers of the Minister under the order made in the Children's Court may not be sufficient to permit the Secretary to allow AB to undergo the extraordinary medical procedure which I describe below. There is no doubt that the Court can, in an appropriate case, exercise its parens patriae jurisdiction to permit such procedures to be undertaken in relation to a child or other person who is not legally competent: Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1991-1992) 175 CLR 218.

6. The Secretary therefore invoked the parens patriae jurisdiction of this Court by commencing these proceedings last Friday. The Secretary approached Pembroke J sitting as Equity Division Duty Judge on an ex parte basis and obtained urgent orders permitting the Secretary or the Secretary's delegate to authorise what might be generally described as quite extreme medical procedures to be performed on AB if, on medical advice, it was thought appropriate to do so. Once those orders were made, AB was placed into a medically induced coma and transported to the hospital in Sydney.

7. The reason why this had to be done is that all other attempts to hydrate and provide nutrition to AB had failed. The treatment for a patient in his condition exhibiting what for present purposes I will refer to as an eating disorder (without making any final finding that is in fact the correct diagnosis of his condition) is, amongst other things, to try to feed the person through a nasogastric tube and to provide hydration intravenously. Unfortunately, whether as a result of his autism or otherwise, he would regularly pull out his nasogastric tube and pull out any cannula that had been inserted to enable him to be fed and hydrated.

8. The hospital that had previously been treating him came to the view that attempts at physical restraint or any other steps to keep him connected to those devices had all failed. This led to the conclusion that feeding him artificially under a high level of sedation would be the only humane way to proceed, and that to keep him in a medically induced coma would require him to be in an intensive care unit that was set up and experienced in dealing with patients in that condition.

The hearing at the hospital

9. The orders made by Pembroke J were made up to and until yesterday, 20 March 2019. The matter came before me as Duty Judge earlier in the week on the application of the Mother for AB to be returned to the care of his parents. She is, understandably, very distressed at what is happening to her son. Her distress, it seems to me, and with no disrespect intended, is amplified by the fact that she is herself medically qualified. This means that, perhaps unlike a non-medically qualified parent placed in this difficult situation, she is even more acutely aware of the risks and difficulties that are associated with AB's current treatment.

10. The Mother and Father, again understandably, want AB to be woken up and returned to their care. They say that AB had made it clear to them that he would be prepared to eat and drink in his particular, controlled way provided he was returned to his home. The immediate difficulty is that, on the medical evidence, his situation had deteriorated to the point where this very serious medical intervention was required.

11. I made arrangements for the hearing of the Secretary's application for continuation of the orders made by Pembroke J to take place at the hospital where AB is currently in the intensive care unit. This was necessary to ensure that any medical or other hospital witness was readily available. At that hearing, Ms K Shea of Counsel appeared for the Secretary, Mrs K Wooi appeared as AB's independent legal representative, and the Mother and Father each appeared for herself or himself. AB's parents opposed continuation of the orders.

12. Before the hearing commenced I was taken to the intensive care unit to see AB. As I explained to the parties at the commencement of yesterday's hearing, what I saw was not to be taken as a formal part of the evidence. However, I should nevertheless record that I saw AB unconscious in his bed, connected to various medical devices, including ventilation equipment, and being attended to by an intensive care nurse. The evidence later disclosed that he is, in fact, attended to in his room on a 24-hour, seven-day basis by a specialist intensive care nurse.

13. At yesterday's hearing the Secretary called the doctor who is the director of the paediatric intensive care unit where AB is currently undergoing treatment (the "Doctor"). I found the Doctor to be a very impressive witness. His answers were clear and well considered. Most importantly for present purposes, his evidence was to the effect that AB was being closely and carefully managed. Contrary to the questions and submissions put by AB's mother, the Doctor said that, while there was always a risk of death for a patient in a medically induced coma, it was his opinion as a specialist intensivist with more than 20 years' experience that the risk of death to AB in his present situation was less than 1 in 10,000. I also took special note of the Doctor's unequivocal evidence that he did not wish to keep AB in a medically induced coma a moment longer than was necessary.

14. The therapeutic purpose of the current treatment is clear. Both the Doctor's evidence and that of a specialist in eating disorders (the "Specialist") who also gave evidence yesterday was that it is essential for AB to put on weight and for his hydration to be restored. The Doctor's evidence was that the hydration aspect of the matter was now under control. The real challenge was to provide AB with a sufficient calorific intake so that he would start to put on weight.

15. The Doctor candidly accepted and enumerated that there were other risks involved in keeping a patient in a medically induced coma. I accept his evidence that the unit in which AB is now a patient is very well equipped and has experienced staff able to mitigate those risks. I was also left in no doubt by the Doctor's evidence that if he came to the view that a serious issue developed where it was no longer in AB's interests to be kept in a medically induced coma, then he would be brought out of that coma as quickly as possible. The Doctor also gave evidence that it was his hope that if AB continued to make progress and to put on weight it might be possible to bring AB out of the coma in as soon as three days.

16. In contradistinction to the Doctor's evidence, the Specialist's evidence was that he thought that AB might have to be kept in the coma for at least a further three weeks to put on sufficient weight. That dispute is not one that it was either possible or necessary for me to resolve in the urgent circumstances of yesterday or today.

17. However, in making yesterday's decision, I placed considerable weight on the Doctor's evidence because the Doctor is AB's current treating physician. While the Specialist has been part of a multidisciplinary team consulting on AB's case, he has not yet himself personally examined AB. I also note the Specialist's evidence, which I accept, that in his extensive experience of adolescents with eating disorders, he has only seen three other cases where the patient has had to be placed in a medically induced coma in order to rehydrate and feed the patient. None of those cases involved the added complication of an autistic patient. I have no doubt from the evidence that, as I said at the outset, this is a rare and difficult case.

18. At the conclusion of the evidence, I asked the Doctor which of two options would be better for AB. The first option was that AB be immediately woken up and given such treatment as could be administered to try to help him to eat and drink. The second option was to keep him in a medically induced coma for at least a further three days to see what progress could be made. The Doctor's unqualified answer was that in his professional opinion the second option was the better one and that the potential benefits for AB in continuing that treatment for at least a further three days outweighed the risks.

19. While the Mother did not tender any expert evidence of her own, her questioning of the Doctor and her submissions were obviously informed by her medical experience. She forcefully advocated for AB to be woken up and returned to his home. However, in the final analysis, the Mother was unable to present, whether by way of formal or informal evidence or opinion, material that in my view outweighed the evidence that had been presented by the Secretary through the Doctor.

20. Nevertheless, the Court is very conscious that this is an extraordinary medical procedure being undertaken in respect of an unusual and challenging case. There is also no dispute about the fact that the current procedure is not an answer to the ultimate issue of how AB is to be treated in the long term.

21. Where the parens patriae jurisdiction of the Court has been invoked, the Court has only one yardstick: what is in the best interests of AB? Applying that test and accepting the evidence of the Doctor, I came to the view that Pembroke J's orders should be continued to allow at least the further three days to pass.

22. I was also concerned to ensure that the matter came back to the Court as quickly as possible thereafter so that the Court could receive an update about AB's condition and deal with any further applications that the Mother or Father might wish to make. For those reasons I extended the orders made by Pembroke J up to and including 26 March 2019, at which time there will be a further hearing before me.

23. To prepare for that hearing I made orders that by 2pm on 25 March 2019 the Secretary should file evidence about:

1. AB's medical progress between the date of these orders and 9.00am (or as close thereto as practicable) on 25 March 2019;

2. when and by reference to what criteria AB may be brought out of his medically induced coma;

3. a treatment plan for AB prepared by appropriately qualified specialists with the aim of returning him to some form of residential care.

24. There was also an issue about AB's parents being able to visit AB and to be kept informed about his medical treatment. Notwithstanding that pursuant to the Children's Court orders legal responsibility for AB is vested in the Minister, the Court was in no doubt that common sense and common humanity dictated that appropriate arrangements should be made for AB's parents to visit him and to be kept informed about his medical situation.

25. With the co-operation of the Secretary and the hospital, which is duly acknowledged, I made orders providing for daily visits by each of AB's parents under the supervision of a representative of the Secretary and of the nurse in charge of the unit where AB is a patient. I also directed that AB's parents were to be given the opportunity to participate at least twice weekly in a telephone conference with AB's treating doctors, his independent solicitor and representatives of the Secretary to hear about AB's treatment.

Today's hearing

26. This morning the Mother contacted my chambers by email and indicated that she wished to make a further application that AB should be woken up, that she and her husband should be given unrestricted access to him, and that he should be returned to their care so they could encourage him to eat.

27. I have heard that further application on short notice. Ms Shea of Counsel again appeared for the Secretary. The Father had not been notified of the application. AB's independent solicitor was notified of the application but indicated that she was unable to attend and that, in any event, she had not been served with any further material and was therefore unable to make any submissions.

28. The basis of the Mother's application today was, as she explained to me from the bar table, that she had been able to speak to an experienced forensic psychiatrist. As I understood what the Mother told me, the combination of what she had learned from the psychiatrist and her (the Mother's) own knowledge provided the foundation for two submissions.

29. First, the low blood pressure which was apparently being experienced by AB at various times may be a consequence of the anti-psychotic medication that was being included as part of his anaesthesia. This issue had been put by AB's mother to the Doctor at yesterday's hearing. The Doctor's answer was that to his knowledge low blood pressure was not an effect of the anti-psychotic medication.

30. The second submission was that AB had now been in a medically induced coma for nearly seven days and that the risk of sudden death and other complications was now unnecessarily high.

31. With no disrespect to the Mother, the Court is unable to act on evidence of that kind from the bar table. The orders which the Court made yesterday were made after a full hearing on the evidence. They are, necessarily, interlocutory orders. It is always possible for a party to seek to revisit interlocutory orders if new evidence becomes available or relevant circumstances change. I do not regard what I have been told from the bar table today by the Mother as new evidence or demonstrating a relevant change in circumstances. I therefore do not propose to accede to the Mother's application today and remain of the view that the regime which the Court ordered yesterday should stay in place.

32. I have informed the Mother that she is at liberty to obtain whatever expert affidavit evidence she can before next Tuesday's hearing. As I have already said, I extended Pembroke J's orders advisedly only up to and including next Tuesday. The Court will then reconsider what should occur in the light of the evidence adduced by the parties.

Conclusion

33. No one should be in any doubt that the Court appreciates both the serious nature of the treatment which is currently being given to AB, and the distress and anxiety currently being experienced by his parents. To my observation, this is a situation where everybody is doing their utmost to act in AB's best interest. His best interest is the only thing that matters in these proceedings and that is what the Court will have at the forefront of its mind next Tuesday when the matter returns for further consideration.

34. There remains liberty to any party, including the hospital (notwithstanding it is not joined as a party), to apply on two hours' notice should there be any development in relation to AB's condition that requires the urgent attention of the Court. In the meantime, the Court remains satisfied, as it was yesterday, that AB is safe and is being very well cared for in one of the best possible facilities for this kind of treatment.

35. I formally dismiss the Mother's oral application made from the bar table for the discharge of the orders which I made yesterday.

36. I confirm that, subject to anybody exercising the liberty to which I have just referred, the proceedings will be listed before me at 9.30am next Tuesday, 26 March 2019.

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Amendments

26 March 2019 - Paragraph 4, level 2 changed to level 3

26 March 2019 - Status changed from restricted

Decision last updated: 26 March 2019