Re Marlie

[2021] NSWSC 973

Supreme Court

New South Wales

Medium Neutral Citation:

Re Marlie [2021] NSWSC 973

Hearing dates:

27 July 2021

Date of orders:

27 July 2021

Decision date:

27 July 2021

Jurisdiction:

Equity - Duty List

Before:

Henry J

Decision:

Authorise the hospital to administer Hepatitis B vaccine and immunoglobulin injection to child. Order the mother to present child to hospital for purposes of administering treatment within 12 hours of birth.

Catchwords:

CHILD WELFARE – parens patriae jurisdiction – order sought by hospital to administer Hepatitis B vaccine and immunoglobulin injection to baby – where mother of child diagnosed with Hepatitis B – where parents withhold consent for treatment primarily on religious grounds – hospital authorised to carry out treatment

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Supreme Court Act 1970 (NSW), s 23

Cases Cited:

Director-General, Department of Community Services v BB [1999] NSWSC 1169

Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193

Re Bernard [2009] NSWSC 11

Royal Alexandra Hospital for Children v Joseph [2005] NSWSC 422

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218; [1992] HCA 15

Sydney Children’s Hospital Network v X [2013] NSWSC 368

X v Sydney Children’s Hospital Network (2013) 85 NSWLR 294; [2013] NSWCA 320

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Northern NSW Local Health District (Plaintiff)
Mother (First Defendant)
Father (Second Defendant)

Representation:

Counsel:
M Anderson (Plaintiff)

Solicitors:
NSW Crown Solicitors (Plaintiff)

File Number(s):

2021/214942

Publication restriction:

The orders made today prohibit the publication or disclosure of any information tending to reveal the identity of the child (known as “Marlie”), the child’s mother and father, the hospital where the child is to receive treatment, any witness in the proceedings and any of the medical practitioners, nursing staff or other persons who have provided or will provide treatment to the child.

Judgment – Ex Tempore (Revised)

1. These reasons deal with an urgent application brought by the plaintiff, Northern NSW Local Health District, late this afternoon for orders in relation to a baby that was born at around midday today to a mother who has been diagnosed with Hepatitis B. In these reasons I refer to the baby as Marlie (not her real name), the first and second defendants, who are the parents of Marlie, as the “Mother” and “Father” respectively, and the hospital at which Marlie was born as the “Hospital”.

2. By summons which the plaintiff was granted leave to file in Court this afternoon, the plaintiff seeks the following orders:

(1) That until further order, the Hospital be authorised to carry out, by:

(a) any qualified member of staff of the Hospital; or

(b) any qualified medical practitioner visiting the Hospital

the following treatment in relation to the Child:

(i) The administration of active vaccination with H-B Vax II (paediatric) and passive vaccination with Hepatitis B immunoglobulin (the Treatment); and

(ii) treatment ancillary to (i) above.

(2) An order that the first defendant, the mother of the Child, present the Child to the Hospital staff for the purposes of administering to the Child the Treatment within 12 hours of the Child’s birth.

(3) That each party has liberty to apply to the Court for such further or other orders as may be appropriate.

3. The orders sought reflect the form of orders made in Sydney Children’s Hospital Network v X [2013] NSWSC 368 which, subject to a minor amendment relating to the duration of the authorisation to carry out treatment, was upheld by the Court of Appeal in X v Sydney Children’s Hospital Network (2013) 85 NSWLR 294; [2013] NSWCA 320, and in other decisions, such as Royal Alexandra Hospital for Children v Joseph [2005] NSWSC 422 at [13] and Re Bernard [2009] NSWSC 11 at [4].

4. The plaintiff’s application seeks to invoke the parens patriae jurisdiction of this Court. It is supported by an affidavit from a Staff Specialist General Paediatrician at the Hospital and written submissions which have been of great assistance.

5. The Mother and Father were given notice of the application shortly before it was brought. Although self-represented, they assisted the Court by providing their views on the plaintiff’s application in a considered and intelligent manner. They oppose the orders sought by the plaintiff.

6. The hearing was conducted by telephone due to the urgency of the application, the parties’ locations and the impacts of the COVID-19 pandemic.

7. In exercising the parens patriae jurisdiction, the overriding criterion to be applied is the best interests and welfare of the child objectively assessed: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218; [1992] HCA 15, at 240 (Mason CJ and Dawson, Toohey and Gaudron JJ); Director-General, Department of Community Services v BB [1999] NSWSC 1169 at [18].

8. Although the parens patriae jurisdiction is extremely broad, it is to be exercised cautiously. There must be some clear justification for the Court’s intervention to set aside the primary parental responsibility for attending to the welfare of the child: Marion’s case at 280 (Brennan J).

9. In Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193, Brereton J (as his Honour then was) applied these principles. In that case, the parents did not consent to their child being vaccinated. Although the Court made orders authorising a hospital to administer a vaccination, the parents did not bring the child to hospital in compliance with those orders and the services of the New South Wales Police were engaged to try and find the child. His Honour observed that the parens patriae jurisdiction enabled the Court to make decisions in place of parents according to the best interests of the child. Where the Court permits medical treatment of a child, it exercises a power that would otherwise be exercisable by a parent and consents “in place of a parent” which involves an exercise of parental responsibility by the Court: at [16] and [18].

10. The evidence on this application can be summarised as follows.

11. The Mother was diagnosed with Hepatitis B while she was pregnant with her first child, who is now five years old.

12. By reason of the birth process and the Mother’s diagnosis, the risk of Marlie becoming infected with Hepatitis B may be as high as 31%. If Marlie becomes infected at birth or within the neonatal period, there is up to a 95% risk that she will be chronically infected with Hepatitis B for life. If she becomes chronically infected, there is a 25% risk that she will suffer from either liver cirrhosis as an adult or primary hepatocellular carcinoma (liver cancer) and, as a result, may die prematurely. Becoming chronically infected with Hepatitis B at birth is also likely to negatively impact on Marlie’s overall quality of life as she grows older.

13. Currently, there is no evidence that anti-viral therapy can ameliorate the long- term effects of a chronic Hepatitis B infection. It is, however, possible to significantly reduce the risk of transmission of Hepatitis B to Marlie if she were to be given two injections in a timely fashion after birth. The first is a Hepatitis B immunoglobulin injection, ideally given 12 hours after birth. That injection would offer short-term passive immunity for Marlie’s Child’s first year of life. The second is a Hepatitis B vaccination, ideally given within 24 hours of birth. Further Hepatitis B vaccinations at the ages of 2, 4 and 6 months of age would provide long-term immunity to the disease.

14. Administration of the Hepatitis B vaccine and Hepatitis B immunoglobulin to babies at risk at birth is standard practice, as endorsed by New South Wales Health. It is also in line with the World Health Organisation’s recommendations on perinatal prevention of Hepatitis B.

15. If Marlie receives the full schedule of Hepatitis B vaccinations and the Hepatitis B immunoglobulin, the risk to her of becoming infected with Hepatitis B would be as low as 0.7% to 1.1%. Even if she were only to receive a single dose of the Hepatitis B immunoglobulin at birth, the absolute risk of becoming infected with Hepatitis B would be reduced to approximately 15%.

16. The Mother and Father made submissions during the course of the hearing as to their conscientious objections to vaccinations and the administration of the Treatment proposed by the plaintiff. These objections stem from a deeply rooted belief system which is particularly based on their religious beliefs. While they are not against medical treatment as such, their preference is to not tamper with Marlie’s immune system. They believe her immune system should be kept intact as God designed it. The Father also expressed a desire to allow Marlie to remain free from vaccinations; he believes that vaccinations may be a cause of autoimmune diseases. The Mother and Father’s beliefs are honestly and clearly held.

17. The Mother was given advice as to the risks of her baby contracting Hepatitis B and the consequences of that infection prior to Marlie’s birth. The advice included that the Treatment would assist in building up her newborn baby’s immunity and that the side effects from vaccinations would not carry any significant risks, including in relation to allergies or diseases of an autoimmune nature. That advice is consistent with the medical evidence before me on this application which indicates that the Hepatitis B vaccination and the Hepatitis B immunoglobulin injection are well tolerated in infants. The side effects are minimal, although there is some possibility of localised pain and redness at the site of the injections and a small risk of fever and headache. The medical evidence also indicates that there is no association between the Hepatitis B vaccination and neonatal infection, death or a range of other illnesses referred to in the affidavit evidence, such as anaphylaxis, auto-immune thyroid disease and hearing loss.

18. The wishes of the Mother and Father are factors which the Court must consider in this case. As I have said, their preference is not to tamper with Marlie’s immune system. Their strongly held convictions support their desire for the Treatment not to occur. However, based on the evidence before me, I am satisfied that this is a case where it is appropriate for the Court to step in and make the orders sought by the plaintiff in the exercise of its parens patriae jurisdiction.

19. As the principles to which I have referred make clear, what is paramount is the welfare and best interests of Marlie. In considering these matters, the Court must exercise an independent and objective judgment so as to balance the advantages and disadvantages of the medical treatment under consideration: Sydney Children’s Hospital Network v X (2013) 49 Fam LR 330; [2013] NSWSC 368 at [10]–[11].

20. In this case, the medical evidence clearly demonstrates that the provision of the Hepatitis B immunoglobulin injection and Hepatitis B vaccination within 12 and 24 hours of Marlie’s birth respectively will greatly reduce her risk of contracting Hepatitis B, with little risk of harm to her. On the other hand, in the context of the Mother’s diagnosis, if no treatment is given to Marlie, there is a significant risk that she will contract the disease, with the attendant prospect of negative long-term impacts and harms to her health later in life. In these circumstances, the desirability of administering the Treatment significantly outweighs the risks to Marlie’s health if it is not administered. In my view, it is clearly in the best interests and welfare of Marlie to authorise and provide the Court’s consent to the Treatment being given to her at this time.

21. For these reasons, I will make the orders sought in the summons as set out in [2] above.

22. I have also been asked to and will make orders pursuant to s 23 of the Supreme Court Act 1970 (NSW) and s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) which prohibit the publication or disclosure of any information tending to reveal the identity of Marlie, the Mother, the Father, the Hospital, any witness in the proceedings and any of the medical practitioners, nursing staff or other persons who have provided or will provide the Treatment. From this time on, the proceedings will also be known as “Re Marlie”. The non-publication order will be for the period up to the time when Marlie turns 25 years of age.

23. I will further make the ancillary orders which are referred to in the plaintiff’s notice of motion which I have granted leave to the plaintiff to file in Court. I have amended that notice of motion to reflect the terms of the orders to be made today and have initialled and dated it and will place it with the file.

24. Finally, I note that the orders that I make today will only authorise the Hospital and its staff to administer the Treatment, being the initial Hepatitis B vaccination and the Hepatitis B immunoglobulin treatment, within 12 hours of Marlie’s birth. It does not extend to any follow up vaccinations at any later age. As the Mother and Father usually reside in Queensland, it is not appropriate for this Court to make any further orders. I was informed that a further application for follow-up treatment may be made to the Queensland Supreme Court in due course.

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Decision last updated: 04 August 2021