"Re Elm"

[2006] NSWSC 1137

CITATION:	Re Elm [2006] NSWSC 1137
HEARING DATE(S):	11 September 2006
JUDGMENT DATE :	30 October 2006
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
DECISION:	Declaration as to effect of statutory provision in circumstances anticipated, and interlocutory injunction, granted ex parte.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – Child Welfare – mother proposing to refuse treatment for child in utero – whether consent to medical treatment by person having “care responsibility” is sufficient if person having parental responsibility does not give, or refuses, consent – whether doctors statutory authority to carry out urgent medical treatment without consent extends to continuation of that treatment – ex parte proceedings.
LEGISLATION CITED:	(NSW) Children and Young Persons (Care and Protection) Act 1998, ss 43, 44, 49, 61, 157, 174 (NSW) Uniform Civil Procedure Rules, rr 10.1, 36.16
CASES CITED:	B & B, Re; Family Law Reform Act 1995 (1997) 21 Fam LR 676, 729-30; (1997) FLC 92-755 Harrison & Woollard (1995) 18 Fam LR 788, 805; (1995) FLC 92-598 NSI Group Pty Ltd v Mokas [2006] NSWSC 976 Talbot & Talbot (1993) 16 Fam LR 910; (1993) FLC 92-397
PARTIES:	Director-General, Department of Community Services (plaintiff) Supressed (defendant)
FILE NUMBER(S):	SC 4763/06
COUNSEL:	R J Bromwich (plaintiff)
SOLICITORS:	I V Knight, Crown Solicitor (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Monday 30 October 2006

4763/06 Re “Elm”

JUDGMENT

1 HIS HONOUR: The defendant is pregnant, and when this application was heard on the evening of 11 September 2006, was due to give birth on 22 September 2006. She arrived in Australia, from an African nation where she was in a refugee camp, in or before 2002. She has tested positive for the Human Immunodeficiency Virus (HIV). Although she initially agreed to take medication during her current pregnancy, she believes that God has miraculously healed her, and ceased taking all medication in March 2006. She does not wish her child to receive the medication which her doctors recommend be administered upon birth, for the reason that she believes that God has cured her and will protect her child. Although a public guardian was appointed in respect of her under the Mental Health Act 1990 (NSW) on or about 1 September 2006, that appointment was revoked on or about 4 September.

2 According to two officers of the Department of Community Services who interviewed her on 5 September 2006, the defendant maintained that she would not agree to taking anti-HIV medication, nor allow her baby once born to receive such medication, nor have a caesarean section. She did not believe that the child would require on-going medical treatment and monitoring once born, though she did not intend to breast feed the baby. Although she indicated that she would not be able to continue to live in accommodation that she was sharing with a male friend much longer after the birth of the child, she did not appear to have made alternative appropriate accommodation arrangements, and had made only very limited arrangements about baby needs. She appeared to have limited social networks and no family in Australia. She said that she did not know who the father of the child was, and that she was on social security payments. She maintained that God had healed her and would protect her child.

3 Whatever she might believe, the defendant is still HIV-positive. Her blood viral load has risen from a low 49 copies/ml on 6 March 2006 (shortly before she ceased taking medication) to more than 100,000 (the highest value that can be reported) on 30 March 2006. As at 27 July 2006, she had a low CD4 count of about 270/ml, and a high HIV viral load of about 83,900 copies/ml. Given her refusal to take anti-HIV medication or to permit her child to do so, there is a serious risk that the child will contract HIV from her upon birth – a risk which would be reduced if she did not have a vaginal birth, and/or consented to the child receiving anti-HIV medication on birth and for at least four weeks thereafter. Having regard to the mother’s high viral load and low CD4 count, and her refusal to undergo elective caesarean section, the risk to the child of contracting HIV is about 50-70% if no anti-HIV treatment is given immediately on birth and no breast milk is given. If anti-HIV treatment is commenced as soon as possible after birth and maintained, the risk falls to about 10-15%. If the child receives breast milk from the infected mother, that risk would double, to about 20-30%. Given that, at present, the defendant does not intend to breast-feed but to bottle-feed the baby, but refuses to consent to caesarean section, at least unless there are obstetric complications, there is potential for a risk of HIV infection in the child being reduced from as high as 70%, to as low as 10%, if appropriate medical treatment for the child is instituted promptly following birth.

4 The Director of Neonatal Intensive Care at Westmead Hospital and Professor of Neonatology at the University of Sydney, will have the responsibility for overseeing and authorising medical treatment and care for the child when born. He has sought advice from a Professor who is an expert in the area of mother-to-child HIV transmission, and has developed a protocol, to be instituted immediately on the birth of the child. It provides for the child to be washed thoroughly in the delivery suite, then commenced on lamivudine syrup and nevirapine syrup, admitted to the neonatal intensive care unit and where an intravenous line will be installed for a blood test and zidovudine and the child given intravenous vitamin K, and then transferred to the special care nursery, where is not to receive breast milk. A second blood test is to be performed 48 hours after birth. The doctor is of the opinion that those steps are necessary, beginning as a matter of urgency as soon as possible after birth, to reduce the risk of the serious damage to the baby’s health that is represented by HIV infection.

5 The doctor has twice explained to the defendant the need for the child to have anti-HIV medication, and has sought her consent, but on both occasions she has emphatically refused. He says that he is prepared to authorise such treatment and care even in the event that the mother maintains her opposition to it. But he says that he is seriously concerned that, should the defendant be given notice of his intention to authorise administration of anti-HIV medication to her baby at birth despite her opposition, she may not present at Westmead, or even elsewhere, to give birth, potentially jeopardising the life of the child as well as delaying the administration of the necessary treatment. [The requisite medication is not immediately available in all wards in New South Wales, though it is at Westmead, and if the mother were to present at another local hospital there would be a delay of hours in that hospital obtaining access to the medication; accordingly, the doctor has authorised provision of such medication urgently to another hospital by Westmead, if Westmead is notified that the defendant has presented elsewhere to give birth]. He adds that it is vital for him and other medical staff to continue to work with the defendant and encourage her to reconsider her position.

6 The Departmental case officer has authorised the making of a care application under the Children and Young Persons (Care and Protection) Act 1998 (NSW), s 61, as soon as possible following the birth of the child, for an interim order that the child be placed under the sole parental responsibility of the Minister. Such an application would be founded on, at least, s 71(d) - that the child’s basic physical or psychological needs were not being met or were not likely to be met by the mother. An interim order would authorise the Minister or his delegates to consent to the medical treatment and care of the child as recommended by medical professionals. As one of those delegates, she (the case officer) would consent to the recommended medical treatment and care.

7 According to the case officer’s evidence, the Children’s Court does not have a facility to deal with urgent applications out of hours. Such an application, once filed, would be listed for mention within two working days. To overcome the inevitable delay, the case officer had intended to authorise the issuing of a notice under s 44, whereby the Director-General would assume care responsibility for the child, upon birth, so that she could immediately consent to the recommended medical treatment, allowing time for the filing of the interim care application.

8 However, Departmental legal advice was to the effect that a notice under s 44 might not confer sufficient authority to override the mother’s opposition to medical treatment, since the mother would retain parental responsibility (including the general right to agree to or refuse medical treatment for the child). In those circumstances, in view of the concern that any doubt or uncertainty as to who had authority to consent to medical treatment might delay its administration upon the birth of the child, to the detriment of the child’s health, welfare and ultimately life, application was made by the Department ex parte on the evening of 11 September for declaratory and other orders, essentially for the purpose of ascertaining the effect of s 44, and other sections of the Act, in the circumstances which it was anticipated might unfold.

9 The summons claimed:

· A declaration that in the circumstances, the director of the neonatal intensive care unit was authorised by s 174 to administer the recommended medical treatment;

· Alternatively, a declaration that the Director-General, upon assuming care responsibility under s 44, had authority to give effective consent to the recommended medical treatment notwithstanding the defendant’s refusal to consent;

· Alternatively, an order authorising the director of the neonatal intensive care unit to administer the recommended medical treatment;

· An injunction prohibiting the defendant upon birth and until further order from breast-feeding the child, or removing the child from any hospital without written approval;

· An order authorising the director of the neonatal intensive care unit to take all reasonable and necessary steps to prevent a breach of that injunction; and

· An order excusing service of the summons and notice of the orders until a practicable and reasonable time soon after the defendant had given birth.

Emergency medical treatment (s 174)

10 Section 174 of the Act relevantly provides as follows:

174 Emergency medical treatment
(1) A medical practitioner may carry out medical treatment on a child or young person without the consent of:


(a) the child or young person, or

(b) a parent of the child or young person,

if the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life or to prevent serious damage to his or her health.

…

(3) Medical or dental treatment carried out on a child or young person under this section is taken, for all purposes, to have been carried out with the consent of:


(a) in the case of a child—a parent of the child, or

(b) in the case of a young person—the young person.


…

11 The authority conferred by s 174 to carry out medical treatment without consent depends on the opinion of the relevant medical practitioner, that it is “necessary, as a matter of urgency, … to prevent serious damage to his or her health”. The Department entertains a concern that because the proposed treatment regime involves treatment which continues over a period of four weeks, it may not qualify as “a matter of urgency”.

12 In my opinion, however, it is plain on the evidence that the institution of treatment upon birth is urgent, and its continuation is an essential part of the treatment. The circumstance that it has to be administered continually over four weeks does not deprive the circumstances that will apply at and immediately following birth of the quality of “urgency”. “Carrying out” medical treatment, for the purpose of s 174, involves its continuation as well as its institution, at least so long as its continuation remains necessary to save life or prevent serious damage to health. If the relevant medical practitioner forms the opinion that, to save the child’s life or prevent serious damage to his or her health, it is upon birth necessary as a matter of urgency to carry out the treatment (and, on the evidence, I apprehend that to be so) he would be entitled to “carry out” the treatment.

13 However, the requisite opinion is one for the relevant medical practitioner to form, and, particularly as I think there is a preferable means of addressing the problem, I declined to make the first claimed declaration.

Assumption of care responsibility (s 44)

14 The second claimed declaration relates to the effect of s 44 of the Act. Sections 43 and 44 relevantly provide as follows:-

43 Removal of children and young persons without warrant
(1) If the Director-General or a police officer is satisfied, on reasonable grounds:


(a) that a child or young person is at immediate risk of serious harm, and

(b) that the making of an apprehended violence order would not be sufficient to protect the child or young person from that risk,

the Director-General or police officer may (without the need for any authority other than that conferred by this subsection) remove the child or young person from the place of risk in accordance with this section.
…
44 Director-General may assume care responsibility of child or young person in hospital or other premises
(1) If the Director-General:
(a) suspects on reasonable grounds that a child or young person is at risk of serious harm, and
(b) is satisfied that it is not in the best interests of the child or young person that the child or young person be removed from the premises in which he or she is currently located,
the Director-General may, instead of removing the child or young person from the premises under a power of removal conferred by or under this Act, assume the care responsibility of the child or young person by means of an order in writing, signed by the Director-General and served on the person (whether or not a parent of the child or young person) who appears to the Director-General to be in charge of the premises.
(2) An order under this section does not cease to have effect merely because the child or young person to whom it relates is transferred to different premises.

15 Section 49 provides as follows:-

49 Care of child or young person pending care proceedings
(1) If a child or young person is removed from the care of his or her parent or parents under this Part or a warrant issued under section 233:
(a) the child or young person is to be kept at a place approved by the Minister for the purposes of this section, and
(b) the Director-General has the care responsibility for the child or young person.
(2) The Children’s Court may, by order, vest the care responsibility in a designated agency.
(3) The Director-General or designated agency having the care responsibility for the child or young person may delegate that responsibility to a relative of the child or young person, an authorised carer or a person approved by the Children’s Guardian.
(4) Despite subsection (3), the Director-General may delegate the care responsibility for the child or young person on an interim basis to a person other than a person specified in subsection (3) but must use his or her best endeavours to delegate that responsibility to a person so specified as soon as is reasonably practicable.

(5) The exercise of the care responsibility by a person referred to in subsection (3) or (4) is subject to any direction given to the person by the Director-General or the designated agency that made the delegation.

16 In the Act, “care responsibility” is defined as the authority to exercise the functions specified in s 157, which relevantly provides as follows:-

157 Care responsibility
(1) The authorised carer of a child or young person has authority to do any of the following:
(a) to consent to medical and dental treatment, not involving surgery, for the child or young person on the advice of a medical practitioner or dentist,
(b) to consent to medical and dental treatment involving surgery that a medical practitioner or dentist certifies in writing needs to be carried out as a matter of urgency in the best interests of the child or young person,
(c) to correct and manage the behaviour of the child or young person, subject to the regulations,
(d) to give permission to participate in activities, such as school excursions, that are organised for the child or young person,
(e) to make other decisions that are required in the day-to-day care and control of the child or young person.

(2) The authorised carer of a child or young person has authority to exercise any aspects of parental responsibility that are delegated to the authorised carer in accordance with this Act.
Note. Aspects of parental responsibility that may be delegated include:
(a) the power to give consent to medical and dental treatment involving surgery, other than urgent treatment, and
(b) the power to make decisions concerning the education and training of the child or young person, and
(c) the power to give a consent on behalf of the child or young person, or to make an application on his or her behalf, for any purpose for which the consent or authorisation of a parent is required, other than:
(i) an application for a passport, or
(ii) consent to marriage.
(3) The exercise of a function under this section by an authorised carer is subject to any written direction given by the designated agency that placed the child or young person in the daily care and control of the authorised carer, or the Children’s Guardian.
(4) An authorised carer:
(a) may provide a child or young person with whatever religious instruction (if any) the authorised carer considers to be appropriate, and
(b) may allow the child or young person to participate in religious activities,

unless a direction to the contrary has been given to an authorised carer by the designated agency responsible for the placement of the child or young person or the Children’s Guardian.

17 It will be observed that “care responsibility” thus includes authority to consent to medical treatment, not involving surgery, on the advice of a medical practitioner. It follows from the interaction of these sections that upon the making of a s 44 order, the Director-General has authority to consent to medical treatment for the relevant child, so long as it does not involve surgery, and is on the advice of a medical practitioner. On the evidence, there seems no doubt that there will be advice that the child should have the recommended medical treatment. That treatment does not involve surgery. The Director-General would therefore have authority to consent to it.

18 In the Act, “parental responsibility” is defined to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children”. An interim care order does not allocate parental responsibility or any aspect of it. However, both s 43 and s44 are intended to provide urgent remedies for risks of serious harm to a child. Section 44 is intended to provide an alternative, less extreme, solution than s 43 to a risk of serious harm, by avoiding removal from the premises, but assuming care responsibility. As s 49 suggests, that involves removal from the care of whoever previously had care of the child – often, though by no means always, a parent, who would also have parental responsibility. Although neither removal under s 43, nor an order under s 44, allocates parental responsibility, those sections would be of no practical utility if persons having parental responsibility – the very persons from whose care, most typically, the child would have been removed or care responsibility assumed - could in effect countermand the decisions of the Director-General or delegate within the scope of “care responsibility”. In my view, a person having care responsibility under s 157 has so to the exclusion of those having parental responsibility from whom care responsibility has been removed.

19 But even if that be wrong, and those having parental responsibility retain their authorities, a person having care responsibility has at least concurrent authority to consent to medical treatment not involving surgery on the advice of a medical practitioner or dentist. It would be sufficient consent for the purpose of the relevant medical practitioner that it has been given by a person having care responsibility, even if others who might also be authorised to consent, do not give that consent, or overtly oppose such treatment. Where (as is normal) two parents each have parental responsibility, either can exercise the duties, powers and rights of a parent separately [Talbot & Talbot (1993) 16 Fam LR 910, 912; (1993) FLC ¶92-397; Harrison & Woollard (1995) 18 Fam LR 788, 805; (1995) FLC ¶92-598 (Fogarty, Baker and Kay JJ); B & B, Re; Family Law Reform Act 1995 (1997) 21 Fam LR 676, 729-30; (1997) FLC ¶92-755, 84,216-17]. Accordingly, a doctor who treated a child with the consent of one parent having parental responsibility would do so with consent, notwithstanding that the other refused consent. Similarly, where two or more persons, not necessarily parents, separately have authority to consent to medical treatment for a child, the consent of any one of them is a sufficient consent. For present purposes, a doctor providing treatment in accordance with the consent of the Director-General having care responsibility would do so pursuant to a valid consent, notwithstanding that those having parental responsibility do not, or refuse to, consent.

20 It follows that in my opinion, upon the proper construction of the Act, in the event of the Director-General making an order under s 44 in respect of the child to be born of the defendant, the Director-General’s consent under s 157(1)(a) and (b) is a sufficient consent, notwithstanding that any other person who may have parental responsibility for the child does not, or refuses to, consent.

21 I was not prepared to make orders conferring - or purporting to confer - authority on doctors or others, which they do not otherwise have. It is not apparent on what basis the third and fifth orders in the above summary of the relief sought could be made.

22 However, the injunction directed to the defendant in respect of breast-feeding and removal from the hospital is another matter. Such an order, made on an interlocutory basis, would be for the purpose of preventing wrongs to the child: the provision of breast milk which may carry HIV, or the removal of the child from medical treatment essential to life and health. Interlocutory injunctions to prohibit tortious conduct are commonly granted.

Ex parte proceedings

23 These proceedings have been heard without notice to the defendant. That has, naturally, occasioned concern as to whether it is appropriate to make any such order, let alone a declaration. Of course, courts often do make orders ex parte where it is necessary to do so in order to avoid those orders being defeated by prior notice, and Mareva orders and Anton Pillar orders are classic illustrations of this, but declarations are not interlocutory orders [cf NSI Group Pty Ltd v Mokas [2006] NSWSC 976, [14] (Palmer J)].

24 The injunctive relief claimed can sufficiently be accommodated within the line of cases that authorises the grant of interlocutory relief where service of notice might defeat the application: were the defendant to be notified of this application, there is a serious risk that she would not present to hospital at all for the birth. However, the declaratory relief is in a different category. I do not see how it can be granted on an interlocutory basis; it is necessarily “final” in character. On the other hand, the declaratory order would not compel or bind the defendant to do anything. It would not alter her rights. It would simply declare the effect of s 44 in the anticipated circumstances. As it would be made in the defendant’s absence, it would be liable to be set aside on application under Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b), and in circumstances where the has been given no notice, an application to set it aside would seem highly likely to succeed.

25 Nonetheless, I think there is utility in making the declaration. In effect, the application has been brought as a means of obtaining judicial advice as to whether the department and the doctors may safely take a certain course of action in difficult anticipated circumstances. The court is not being asked to authorise any intervention in or invasion of the rights of the defendant, but simply to declare the effect and extent of what has already been authorised by the legislature. The short and long-term health and well-being, if not the life, of a child soon to be born is at stake. If it turns out that my construction of s 44 is incorrect and the declaration was wrongly made, then the only “harm” done will be that the doctors will have intervened, believing that they had a lawful consent from the Director-General to do so, when otherwise they might not have intervened or, if they had, would have done so doubting whether they had a valid consent. If I declined to grant the declaratory relief, the doctors may decline to intervene for doubt as to the legality of their position. While I am conscious of the dangers of acting ex parte, in this case the benefits of so doing greatly outweigh the disadvantages.

26 For those reasons, on 11 September 2006, I made the following orders:

1. ORDER that the Plaintiff have leave to file a summons in the form initialled by me, dated this day and placed with the papers, together with a Notice of Motion also initialled, dated this day and placed with the papers.

2. ORDER that the Summons be returnable on 30 October 2006 at 10.00 am before me in the Duty Judge List.

3. ORDER that the Notice of Motion be returnable instanter .

4. ORDER that pursuant to Uniform Civil Procedure Rules , r 10.1(1), the Plaintiff need not serve copies of the Summons, Notice of Motion and affidavits, and these orders on the Defendant until a practicable and reasonable time soon after the Defendant has given birth to the Child referred to below.

5. ORDER that no publication that would identify or tend to identify the Defendant or the child currently in the womb of the Defendant (“the Child”) except for the purpose of the proper conduct of the proceedings and any other proceedings pursuant to the Children and Young Persons (Care and Protection) Act 1998.

6. ORDER that the proceedings be heard in a closed court.

7. ORDER that the proceedings be known as Re Elm .

8. DECLARE that upon the proper construction of Children and Young Persons (Care and Protection) Act , 1998, that in the event of the Director-General making an order under s 44 of that Act in respect of the Child to be born of the Defendant, the Director-General has authority to give the consents referred to in s 157(1)(a) and (b), notwithstanding that any other person who may have parental responsibility for the Child refuses to give any such consent.

9. ORDER that until further order, upon and from the birth of the Child, the Defendant be prohibited from:


a. breast feeding (directly or indirectly) the Child; and

b. removing the Child from the hospital or any other hospital in New South Wales in which the Defendant has given birth without written approval form such hospital or from the Plaintiff, as the case may be.


10. ORDER that there be liberty to apply, including to set aside the declaration in paragraph 8 pursuant to Uniform Civil Procedure Rules , r 36.16(2)(b), on such notice as to the judge hearing the application may seem appropriate.

11. ORDER that time to appeal or seek leave to appeal from these orders not run until service of these orders personally upon the Defendant.

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