Re Rosie (No 3)

[2023] NSWSC 37

Supreme Court

New South Wales

Medium Neutral Citation:

Re Rosie (No 3) [2023] NSWSC 37

Hearing dates:

27 January 2023

Date of orders:

27 January 2023

Decision date:

03 February 2023

Jurisdiction:

Equity - Duty List

Before:

Meek J

Decision:

Orders authorising the administration of depot injections of psychotropic medication to R and necessary restraints of R to facilitate receipt of treatment

Catchwords:

CHILD WELFARE — parens patriae — Prior secure accommodation orders and related orders made in relation to young girl — Subsequent deterioration in relation to R’s mental health and behaviour resulting in R’s hospitalisation and a scheduling order under the Mental Health Act 2007 (NSW) — Evidence of R’s refusal to take prescribed medication and of R’s threats to harm others but also suicidal ideation and self-harm — Urgent oral application brought by the Secretary and Minister for orders authorising certain medical treatment to be carried out on R and an order authorising R’s restraint for such purposes

CHILD WELFARE — parens patriae — Discussion of scope of parental responsibility and concepts of “authorisation” of medical treatment as distinct from “consent” for medical treatment — In exigencies of urgency of application orders framed in terms of “authorisation” — Not appropriate, absent submissions, to express any firm view regarding the differences between what is said to be authorisation per se and consent for treatment and the question of precisely what is involved in framing of parens patriae orders in terms of authorisation or consent

CHILD WELFARE — parens patriae — Order for authorisation of medical treatment — Proposed treatment premised on the fact that R would receive medication not significantly different to that which she had already been receiving nor materially different in dosage — Proposal that medication be administered in a different form mainly by IMI (with appropriate restraints to effect that) rather than orally — Orders authorising the administration of depot injections of psychotropic medication

Legislation Cited:

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

Mental Health Act2007 (NSW)

Minors (Property and Contracts) Act1970 (NSW)

Poisons and Therapeutic Goods Act1966 (NSW)

Cases Cited:

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

Gibbons v Wright (1954) 91 CLR 423

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

Hospital v Baby M [2020] NSWSC 1481

InRe C (Adult: Refusal of Treatment) [1994] 1 WLR 290

Re Baby D (No 2) [2011] FamCA 176; (2011) 45 Fam LR 313

Re ELM (2006) 69 NSWLR 145; [2006] NSWSC 1137

Re Joel [2013] NSWSC 1299

Re Kara [2020] NSWSC 1083

Re Rosie (2022) NSWSC 1001

Re Rosie (No 2) [2022] NSWSC 1750

Re Sally [2009] NSWSC 1141

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

The Hospital v S(a minor) [2019] NSWSC 642

Texts Cited:

National Health and Medical Research Council, National Statement on Ethical Conduct in Human Research 2007

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (First Plaintiff)
Minister for Families and Communities (Second Plaintiff)
Rosie (First Defendant)

Representation:

Counsel:
B J Dean (Plaintiffs)

Solicitors:
Crown Solicitor’s Office (Plaintiffs)
S Luke (First Defendant)

File Number(s):

2022/217845

JUDGMENT

1. HIS HONOUR: On Friday 27 January 2023, I heard, on an urgent basis, an application in relation to a young girl known by the pseudonym Rosie.

2. The proceedings are protective proceedings invoking the Court’s parens patriae jurisdiction and have been mentioned on various occasions and have been the subject of several judgments by me: see Re Rosie (2022) NSWSC 1001 (Rosie (No 1)); Re Rosie (No 2) [2022] NSWSC 1750 (Rosie (No 2)).

3. These reasons assume a familiarity with the judgments in Rosie (No 1) and Rosie (No 2) and will adopt their abbreviations.

4. The application was an oral application brought by the Secretary and Minister for orders authorising certain medical treatment to be carried out on Rosie and an order authorising Rosie’s restraint for such purposes.

5. The reason for the application to the Court, rather than the Secretary and Minister assuming responsibility for the decision, is that the Secretary is concerned that the parental responsibility allocated to the Minister with respect to Rosie is not sufficient to permit the Secretary to allow Rosie to receive the proposed medical treatment (being the administration of depot injections of psychotropic medication) by her treating medical practitioners.

6. Mr Dean of counsel appeared for the Secretary and Minister. Ms Luke appeared for Rosie.

7. Ms Luke confirmed on the hearing of the application that she was supportive of the orders and had no particular objections to the evidence I outline below.

8. The application was supported by an affidavit from Kayleigh Wotherspoon affirmed 25 January 2023 and an exhibit to that affidavit KW-3.

9. Ms Wotherspoon is a manager and caseworker with Metro ISS and has previously given evidence in these proceedings.

10. On the hearing of the application, that evidence was supplemented with oral evidence from Ms Wotherspoon. Additionally, Ms K, a clinical nurse consultant, and Dr R, a child psychiatrist, were called to give oral evidence by AVL.

11. I was assisted by written submissions from Mr Dean and have drawn upon those submissions both for the purposes of making the orders (on 27 January 2023) and preparing these reasons for judgment.

12. I determined to make the orders outlined below.

13. Because of the urgency of the hearing, I indicated that I would make orders and subsequently provide reasons. What follows are my reasons for acceding to the application.

14. I have generalised, and in some cases omitted (by redaction) some of the detail of the factual background and evidence, in the interest of Rosie’s protection.

Events giving rise to the urgency

15. In November and December 2022, Rosie had contact with BM and others. At some point Rosie will leave her current program and steps will need to be taken in respect of her placement and contact with family members.

16. From about mid-January 2023, there has been a significant deterioration in Rosie’s mental health and her behaviour, culminating in her hospitalisation on 20, 21 and 22 January 2023.

17. Rosie was admitted to the Child and Adolescent Mental Health Inpatient Unit (Adolescent Mental Health Unit) at Campbelltown Hospital.

18. The conduct that precipitated Rosie’s admission included incidences of self-harm by Rosie, and other conduct by her being both verbally and physically abusive to others and threatening to others. In particular, since approximately mid-January, Rosie refused to take her prescribed medications which led to her becoming increasingly distressed and hyper-aroused.

19. On the hearing of the application some evidence was led which was directed to explaining or at least proffering some context or reason as to why Rosie’s behaviour had significantly deteriorated. No firm conclusion can be drawn as to the catalyst for that deterioration. For the purposes of addressing the application it was not necessary for me to form any concluded view regarding why the deterioration occurred. I do not do so.

20. At some point, it may be necessary and appropriate to explore more deeply the circumstances that gave rise to the deterioration in Rosie’s behaviour.

21. It is clear that the Secretary and the Minister are mindful of Rosie’s welfare and no doubt will take whatever steps or action they consider appropriate to ensure Rosie’s well-being going forward.

22. On 20 January 2023, a plan was developed for Rosie by her treatment providers including a psychiatrist Dr J to use medication (O) to sedate Rosie. In the event that Rosie declined to be medicated and continued to be distressed and at risk of harm to herself and others, the plan envisaged she would be transported to hospital for review.

23. Later that day, Rosie was encouraged to take the medication but refused and claimed that she had made a promise to an imaginary person not to take the medication. Rosie was subsequently transported by ambulance to hospital where she was assessed and ultimately agreed to take O. After reassessment, Rosie was discharged and returned to Secure House.

24. The following day, Rosie again refused to take medication and became dis-regulated. Once again, she was transported by ambulance to the hospital, admitted and administered O, discharged, and returned to Secure House.

25. The following day, Rosie yet again refused to take her medication and her physical behaviour escalated resulting in physical abuse. Rosie was taken to hospital and scheduled under the Mental Health Act2007 (NSW) and admitted to the Adolescent Mental Health Unit.

26. Rosie has regular medications (P, Q & G) which are taken orally.

27. A senior child and adolescent psychiatrist, Professor N, initially reviewed Rosie in early 2022 and reviewed her on 10 occasions during 2022.

28. For the purposes of the application, Professor N provided a report regarding Rosie.

29. The report recited Rosie’s history, her recent progress, developmental assessments and interventions regarding Rosie, her background and placement history, past treatment and referred to the rationale for her placement at Secure House.

30. The report addressed, at least in part, material which may bear upon the catalyst for Rosie’s deterioration in behaviour.

31. As I have noted above, there is no immediate need for me to explore that issue.

32. Relevantly, the report outlined the medications which Rosie has been taking and the rationale for her medications.

33. In particular the report made recommendations that in circumstances where Rosie declines to take the medication orally, that she be administered the medication by intra-muscular injection (IMI).

34. On the hearing of the application, I sought to understand more particularly whether the recommendations regarding doses involved any material increase in dosage as being administered to Rosie.

35. Very understandably, Ms Wotherspoon was not in a position to give particular evidence on that issue. For that reason, I explored the possibility with Mr Dean of additional evidence being called to address that issue.

36. In the circumstances of the urgency of the hearing, Professor N was unavailable to give evidence. However, as noted above, Ms Wotherspoon and Dr R gave evidence.

37. I was satisfied as a result of their evidence that the dosage amounts of the IMI deltoid are the effective equivalence of oral dosages.

38. A “depot injection” is a form of IMI which is long-acting medication (which releases slowly over time to permit less frequent administration of the medication).

39. There is a dosage conversion when a patient goes from oral medication to shorter duration of IMI and then a longer duration of IMI. The detail of this was explained by Ms Wotherspoon and Dr R and appears in the transcript. There are guidelines given by the relevant pharmaceutical companies.

40. Because of preparation of the medication and how it is absorbed into the body, there are differences such that one cannot be mathematically precise with calculations: T 17. The appropriate dosages, in this regard, are guided by the experience and expertise of the medical professionals attending to the patient, no doubt taking into account any relevant pharmaceutical guidelines.

41. In this case, the taking of medication P orally involves a lesser dose than taking it by way of IMI because of the physiological uptake of the drug.

42. The substance of the evidence is that a dosage of P orally last three days, P administered IMI last about three weeks to one month and T (a form of P in which the active ingredient is the same) lasts for about three months.

43. Understanding the recommendation of Professor N, what is proposed is not any material or significant increase in dosage, but rather a change in the form in which it is administered, being from oral administration to IMI.

44. I asked about potential side effects of changing the form of administration of P from oral to IMI. The evidence was to the effect that any side effects would be essentially the same as the taking of oral medication.

45. In particular, if a patient has tolerated the oral medication, then generally there is no expectation that there will be any serious side effects from the IMI or depot injection.

46. Previously, Rosie has not experienced any untoward side-effects from taking P orally. Sometimes there may be metabolic side-effects. However, I was informed that there is another medication that can address those side-effects.

Legal principles

47. I addressed the nature and extent of the parens patriae jurisdiction with respect to secure accommodation orders in Rosie (No 1) and Rosie (No 2).

48. In Rosie (No 2), I noted at [8]-[13]:

8. The legal framework within which such orders occur involves the Court’s parens patriae jurisdiction and various legislative provisions.

9. A significant part of the legislative framework is the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act).

10. Under the Care Act a “child”is a person who is under the age of 16 years. A “young person”is a person who is aged 16 years or above but who is under the age of 18 years: s 3 Care Act.

11. There are statutory limitations under the Care Act (as noted below) which limit the extent to which the Children’s Court can make an order for emergency care and protection of a CYP. It is in this context that the parens patriae jurisdiction is invoked in such cases.

12. The jurisdiction is exceptional and must be exercised with great caution. Generally, the greater the interference with the liberty of the CYP, the greater the caution that is required: Re Sally [2009] NSWSC 1141 per Slattery J at [57] (Re Sally (No 1)); Director General, Department of Community Services v Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220 (Re Thomas (No 1)) at [35] per Brereton J (as his Honour then was).

13. The extent of the parens patriae jurisdiction, insofar as it applies in connection with secure accommodation orders, is addressed by Brereton J (as his Honour then was) in Re Thomas (No 1).

49. The Secretary and the Minister do not seek an order that Rosie be made a ward of the Court, given that she is already in the parental responsibility of the Minister by reason of an earlier order made by the Children’s Court.

50. Nonetheless, the parens patriae jurisdiction extends to making orders about the custody and care of children whether or not they have been declared to be wards of the Court: Re Kara [2020] NSWSC 1083 at [64] per Williams J.

Consent to medical treatment

51. This judgment is not the occasion to essay a detailed analysis of what falls within and without the ordinary scope of parental power to consent to medical treatment.

52. However, I address below a number of the applicable principles.

53. At common law a person who is sui juris has the right to determine what happens to their body including by consenting to or refusing medical treatment. Non-consensual medical treatment of a sui juris person may constitute a criminal assault and/or a tortious trespass to the person: Secretary, Department of Health and Community Services v JWB and SMB (“Marion's Case”) (1992) 175 CLR 218; [1992] HCA 15 at 267 per Brennan J (as his Honour then was) and at 309-310 per McHugh J.

Capacity to consent to treatment

54. Under the general law there is no single test for capacity to perform or engage in legally valid acts. Rather, capacity is decided, in relation to each particular situation, by reference to whether the person has sufficient mental ability to be capable of understanding the general nature of what he or she is doing by his or her participation in the activity. Such understanding and consent, if given, is usually premised on the provision of information by way of explanation of what is involved in the transaction or procedure: Gibbons v Wright (1954) 91 CLR 423 at 437-438 per Dixon CJ, Kitto and Taylor JJ.

55. The age of majority in New South Wales is 18 years: Minors (Property and Contracts) Act1970 (NSW) (Minors Act) s 9.

56. In some jurisdictions, a minor’s capacity to give informed consent to medical treatment is regulated by statute: see e.g., Minors Act s 49 which provides as follows:

49 Medical and dental treatment

(1) Where medical treatment or dental treatment of a minor aged less than sixteen years is carried out with the prior consent of a parent or guardian of the person of the minor, the consent has effect in relation to a claim by the minor for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, the minor were aged twenty-one years or upwards and had authorised the giving of the consent.

(2) Where medical treatment or dental treatment of a minor aged fourteen years or upwards is carried out with the prior consent of the minor, his or her consent has effect in relation to a claim by him or her for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, he or she were aged twenty-one years or upwards.

(3) This section does not affect:

(a) such operation as a consent may have otherwise than as provided by this section, or

(b) the circumstances in which medical treatment or dental treatment may be justified in the absence of consent.

(4) In this section:

dental treatment means:

(a) treatment by a dentist in the course of the practice of dentistry, or

(b) treatment by any person pursuant to directions given in the course of the practice of dentistry by a dentist.

medical treatment means:

(i) treatment by a medical practitioner in the course of the practice of medicine or surgery, or

(ii) treatment by any person pursuant to directions given in the course of the practice of medicine or surgery by a medical practitioner.

57. In the case of minors under the age of 16, the issue of consent to medical treatment is, as a consequence of Marion’s Case, approached by reference to what is known as the “Gillick Principle”: see Marion's Case at 237 per Mason CJ, Dawson, Toohey and Gaudron JJ referring to and approving Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (Gillick).

58. Parental power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacities and maturity grow. The rate of development depends on the individual child: Marion’s Case at 237.

59. A minor, under the Gillick Principle, is 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 (Gillick competent): Marion’s Case at 237 referring to Gillick at 189 per Lord Scarman and also 169 per Lord Fraser of Tullybelton, 194-195 per Lord Bridge of Harwich.

60. The mere fact that a child has a disability does not per se lead to a presumption that by virtue of that disability the child is incapable of giving consent to treatment: Marion’s Case at 239.

61. Nonetheless, the fact that the child suffers from a disability makes consideration of the capacity to consent a different matter, than from a case of no disability: Marion’s Case at 238.

62. Intellectual disability affects capacity. Disorders affecting mental and physical health also impact upon capacity and decision-making. I referred to this in part in Rosie (No 2) at [124]-[126].

63. Mr Dean submitted, and I accept, that whether, as a matter of fact in the particular case, a child has a sufficient understanding and intelligence to enable him or her to understand fully the proposed medical treatment may depend upon the child’s capacity to engage in stages of decision-making.

64. In particular, what is important is the child’s ability to comprehend and retain information about the treatment, to believe the information, and to weigh the information in the balance to arrive at a choice. That may be affected by external factors including shock, fatigue, the influence of drugs, the influence of others, or the very condition requiring treatment: e.g. InRe C (Adult: Refusal of Treatment) [1994] 1 WLR 290 at 292, 294-295 per Thorpe J.

57. Where a child is not Gillick competent, parents, as guardians, may in a wide range of circumstances consent to medical treatment of the child who is a minor: Marion’s Case at 239.

Scope of parental power to consent to medical treatment for a child

66. By the common law and occasionally by statute there are exceptions to the need for parental consent in the case of emergency treatment: Marion’s Case at 239.

67. Where parental power to consent to medical treatment of a child who is a minor exists, two principles are involved.

68. First, the subjective consent of the parent in the sense of the parents speaking for the child is, ordinarily, indispensable. That authority emanates from a caring relationship: Marion’s Case at 239-240.

69. Secondly, the overriding criterion to be applied in the exercise of parental authority on behalf of the child is the welfare of the child objectively: Marion’s Case at 240.

70. For practical purposes, often those two principles become one as a consequence of recognising that, ordinarily, a parent of a child who is not capable of giving informed consent is in the best position to act in the best interests of the child: Marion’s Case at 240.

71. However, there are kinds of interventions which are, as a general rule, excluded from the scope of parental power to consent to: Marion’s Case at 239-240.

72. In Marion’s Case, the plurality, after surveying the law in Australia, New Zealand, England and the United States, formed the opinion that factors involved in the decision to authorise the sterilisation of a minor in order to ensure the best protection of the interests of the child are such that such a decision should not come within the ordinary scope of parental power to consent to medical treatment. In such a case, the plurality indicated that Court authorisation is necessary and is, in essence, a procedural safeguard: Marion’s Case at 249.

73. In Re ELM (2006) 69 NSWLR 145; [2006] NSWSC 1137 (Re ELM), Brereton J (as his Honour then was) considered circumstances in which the defendant was pregnant and due to give birth within approximately 11 days. She had tested positive for the Human Immunodeficiency Virus (HIV) and initially agreed to take medication during her pregnancy: at [1].

74. However, the defendant held a belief that God had miraculously healed her and ceased taking all medication months earlier. She did not wish her child to receive the medication which the doctors recommended be administered upon birth: at [1]. An application was made by the Director-General, Department of Community Services for orders permitting the child to be given anti-HIV medication at birth and for at least four weeks thereafter on the basis that such medication would greatly reduce the risk of the baby contracting HIV.

75. His Honour declared that on the proper construction of the Care Act that in the event that the Director-General made an order under s 44 of the Care Act in respect of the child to be born, the Director-General had 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 refused to give such consent: at [26]. Other consequential orders were made.

76. The types of medical intervention which may be authorised are varied. In Re Jules, Barrett J (as his Honour then was), sitting as Duty Judge, made an order authorising the Director of Medical Administration of the relevant hospital to administer hepatitis B vaccine to a two-day old infant: see e.g., Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193; (2008) 40 Fam LR 122 (Re Jules), as noted by Brereton J (as his Honour then was) at [4].

77. In Re Jules, Brereton J (as his Honour then was) stated at [13]-[21]:

13 In this State, in K v Minister for Youth and Community Services [1982] 1 NSWLR 311, Helsham CJ in Eq referred to those cases in holding that a person does not have to be made a ward of the Court before the jurisdiction can be exercised (at 323). That was in circumstances where a child, who was a ward of the Minister, by her next friend and mother, applied for an order permitting her to have an abortion to which the Minister had declined to consent. His Honour ultimately ordered that the Minister give all necessary consents for the purpose of enabling the child temporarily to absent herself from the home in which she was an inmate for the purpose of receiving medical treatment from a particular doctor for the purpose of terminating her pregnancy and that the child return to the specified home and the care of the Minister as soon as reasonably possible thereafter. His Honour did not purport to give consent in loco parentis, but ordered that the Minister, who had parental responsibility, give all requisite consents.

14 Wide as the parens patriae jurisdiction is – indeed, it has been said that no limit has ever been set to it and that it extends as far as is necessary for the protection and education of children [Wellesley v Wellesley (1828) 2 Bli NS 124, 136-137; Re X (a Minor) [1975] 2 WLR 335, 342; K v Minister for Youth and Community Services, 326] – I was concerned that the Court did not, at least in its parens patriae jurisdiction, have power to make the order sought conferring authority on the officers of the New South Wales Police Force to search and take custody of the child – a concern which was subsequently confirmed by reference to the judgment of Powell J in Vaughan v Vaughan (NSWSC, Powell J, 27 February 1979, unreported), in which a similar order had been sought in aid of a writ of habeas corpus, but His Honour explained that the Court could not simply authorise police to do things that they were not otherwise authorised to do in the absence of such statutory provisions as empowered the Family Court, under the then provisions of the Family Law Act, to issue a warrant to police, and moreso where the persons sought to be so authorised were not parties to the proceedings. The observations of Powell J in Vaughan v Vaughan confirm my view that the parens patriae jurisdiction does not empower the Court to confer authority on others – such as medical practitioners – in respect of a child, although it can assume, and delegate, parental responsibility or aspects of it.

15 The parens patriae jurisdiction is, of its nature, one that involves the Court assuming parental responsibility in part or in whole in respect of a child, where those otherwise entrusted with that responsibility are found by the Court not to be exercising it – or not to be able to exercise it – in the best interests of the child. The Court respects the autonomy of the parents and will interfere only to the minimum extent necessary, respecting the wishes of the child and the wishes of the parents. As Helsham CJ in Eq said in K v Minister for Youth and Community Services (at 326F):

I am conscious of the desirability of permitting the Minister to exercise all his powers as guardian without unnecessary interference of the court. The same is true of any guardianship situation. No doubt the occasions will be rare when the necessity to supervise his actions will prompt the court to intervene. When they arise this Court must see that such steps as it considers to be in the interests of the welfare of the child must be taken, whatever may be the views of others in relation to them.

16 In exercising this jurisdiction, the Court endeavours to act as would a wise parent. Traditionally, and typically, the Court assumes parental responsibility in such a case by making a child a ward of the Court. When it does so, the powers otherwise exercisable by a parent in respect of a child are vested in the Court; no significant step in connection with the child can be taken without the consent of the Court; and the Court may in place of the parents make those decisions which it considers appropriate in the best interests of the child.

17 The cases to which I have referred suggest that the Court can perform at least some of its parens patriae functions without making the child a ward of the Court. However, none of those cases involved the giving of consent to medical treatment in lieu of parental consent. The practice appears to have developed of seeking and making orders that purport to "authorise" medical practitioners to treat a child. This practice, in my view, is an unfortunate one. As Vaughan v Vaughan illustrates, the jurisdiction of the Court does not extend to allowing it to cloak with legal authority those who do not otherwise have it, unless as an aspect of parental responsibility assumed or delegated by the Court. Ordinarily, the power to request and consent to medical treatment on the part of a child is a power vested in each of the parents as an aspect of parental responsibility, and that is one of the powers which passes to the Court if, by making the child a ward, it assumes parental responsibility.

18 When the Court permits medical treatment of a child, it exercises a power that would otherwise be exercisable by a parent of the child, to request and consent to medical treatment. It does so as an exercise of parental responsibility, not as a conferral on the medical practitioner of some power or authority that would not otherwise exist, or a delegation of parental responsibility to the medical practitioner. It is an authorisation only in the same sense that it might be said that, when a parent requests a doctor to treat a child, the parental consent might be said to be an authorisation; more accurately, it is a request for and consent to treatment, rather than an authorisation. Another way of looking at it is that, the Court in place of a parent having consented to the treatment, it is lawful for the medical practitioner to perform the treatment, the parents’ refusal of consent being beside the point once the Court has given its own consent – just as it is sufficient that one parent consents, each having parental responsibility and the ability to consent, even if the other does not [B & B (1997) 21 Fam LR 676, 729-730; (1997) FLC ¶92-755, 84,216-84,217; Re Elm [2006] NSWSC 1137; (2006) 69 NSWLR 145, [19]].

19 It may be observed that this concept of "authorising" treatment appears to derive from Marion’s case [Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218], but that case involved a quite different issue. Marion’s case established that there were some procedures – including compulsory sterilisation – the approval of which falls outside the ordinary scope of parental authority and requires the approval of the Court as parens patriae. In other words, there are some decisions relating to children that are so grave that they are not within ordinary parental responsibility, but are reserved the parens patriae. In Marian’s case, the Court “authorised” the procedure (where the parents already supported it), but it did not purport to confer authority on any specific person or medical practitioner to perform the treatment. The “authorisation” in this context was an expression of the consent of the Court as parens patriae to the procedure.

20 Because “authorising” medical treatment in the way sought in the present case involves an assumption of parental responsibility by the Court from parents to that extent, it seems to me preferable, though not in every case essential, that the basis on which the Court is acting is made clear, by making the child a ward of the Court, at least on an interim basis. It was first for that reason that on 22 August I determined that the child should be made a ward of the Court until further order. However, I delegated parental responsibility to the Director-General. That delegation of parental responsibility to the Director-General was a delegation of all those rights, powers, authorities and responsibilities that a parent has in respect of a child and, in particular, was sufficient to enable the Director-General to request and consent to medical treatment for the child –including the Hepatitis B vaccination.

21 A second reason for making a child a ward of the Court and giving parental responsibility to the Minister was that while, as I have foreshadowed, this Court could not in its inherent jurisdiction make an order authorising the New South Wales Police to search vehicles and premises, and take the child and deliver him to the Director-General, as Powell J mentioned in Vaughan v Vaughan, Family Law Act, s 67Q, gives statutory authority for recovery orders, which include orders to that effect. The difference between the position which pertained before me and that which confronted Powell J in 1979 is the intervention of the Jurisdiction of Courts (Cross-Vesting) Act, which now gives this Court the power to make such orders under the Family Law Act. By the conferral on the Director-General of parental responsibility, the Director-General became a person in whose favour a recovery order under Family Law Act, s 67Q, could be made. Accordingly, having ordered that until further order the child be a ward of the Court and that the Director-General have parental responsibility, I also made a recovery order pursuant to Family Law Act, s 67Q, that the child be delivered to the Director-General and that all officers of the Australian Federal Police and New South Wales Police be authorised to stop and search vehicles, and enter and search premises, for the purpose of finding and recovering the child and delivering him to an officer of the Department. I reserved liberty to apply, and I also directed that there be endorsed on the order notice to the parents that should they wish to apply urgently to vary or discharge the order, they were to telephone the court security desk and ask for the Equity Duty Judge.

78. A number of propositions emerge from the decision of Brereton J (as his Honour then was) in Re Jules. At the risk of oversimplifying what his Honour set out in the reasons for judgment, the following may be noted:

1. Ordinarily, the power to request and consent to medical treatment on the part of a child is a power vested in each of the parents as an aspect of parental responsibility.

2. The parens patriae jurisdiction is one that involves the Court assuming parental responsibility in part or in whole in respect of a child, where those otherwise entrusted with that responsibility are found by the Court not to be exercising it – or not to be able to exercise it – in the best interests of the child.

3. The Court respects the autonomy of the parents and will interfere only to the minimum extent necessary, respecting the wishes of the child and the wishes of the parents.

4. When the Court assumes parental responsibility, the powers otherwise exercisable by a parent in respect of a child are vested in the Court; no significant step in connection with the child can be taken without the consent of the Court.

5. The Court can perform at least some of its parens patriae functions without making the child a ward of the Court.

6. The jurisdiction of the Court does not extend to allowing it to cloak with legal authority those who do not otherwise have it, unless as an aspect of parental responsibility assumed or delegated by the Court.

7. The power to request and consent to medical treatment on the part of a child is one of the powers which passes to the Court by making the child a ward.

8. There are some decisions relating to children (including regarding compulsory sterilisation) the approval of which falls outside the ordinary scope of parental authority and requires the approval of the Court as parens patriae.

9. When the Court permits medical treatment of a child, it exercises a power that would otherwise be exercisable by a parent of the child, to request and consent to medical treatment.

10. It does so as an exercise of parental responsibility, not as a conferral on the medical practitioner of some power or authority that would not otherwise exist, or a delegation of parental responsibility to the medical practitioner.

11. It is an authorisation only in the same sense that it might be said that, when a parent requests a doctor to treat a child, the parental consent might be said to be an authorisation; more accurately, it is a request for and consent to treatment, rather than an authorisation.

12. Where the Court acts in this way by “authorising” treatment it is an expression of the consent of the Court as parens patriae to the procedure.

13. Where “authorising” medical treatment in this way involves an assumption of parental responsibility by the Court from parents it is preferable, though not in every case essential, that the basis on which the Court is acting is made clear, by making the child a ward of the Court, at least on an interim basis.

14. Notwithstanding an order that the child should be made a ward of the Court until further order, parental responsibility may be delegated by the Court to the Director-General (now Secretary) and such delegation of all those rights, powers, authorities and responsibilities that a parent has in respect of a child is sufficient to enable the Director-General (now Secretary) to request and consent to medical treatment for the child.

79. In Re Baby D (No 2) [2011] FamCA 176; (2011) 45 Fam LR 313 (Re Baby D (No 2)) at [233]-[234], Young J stated as follows:

233. In arriving at my conclusions that parents, a hospital or medical practitioners may properly seek court authorisation for decisions that are within the ambit of the “unclear dividing line” discussed in Marion’s case I strongly reiterate the sentiments of Murphy J in Re Sean and Russell that the law should tread lightly in seeking to intrude or impose itself upon these extremely difficult decisions. In that context, however, it is important to ensure that the court continues to have a role in circumstances where “court authorisation is necessary and is, in essence, a procedural safeguard” for the performance of medical interventions considered to be a “special medical procedure” or “special case”, particularly where issues in conflict with the best interests of the child may exist and may be a matter of real concern.

234. Thus where there is a real and genuine issue or concern in relation to a medical treatment or procedure that is to be performed on a child, and an application is brought pursuant to the Act, for a proper purpose, and not in avoidance of parental responsibility, if the court’s jurisdiction is invoked then the court has a duty to hear and determine the application according to law (footnotes omitted).

80. In Re Joel [2013] NSWSC 1299, the Director-General and Minister sought an order authorising a bone marrow transplant to assist with a condition involving Joel’s optic nerves which clinical presentation demonstrated had been damaged.

81. Bergin CJ in Eq noted that such applications involve difficult decisions for a parent or for anyone with parental responsibility and that the weighing up of the possible positive outcomes for the infant compared with the prospect of demise (in an extreme case) needed careful reflection: at [9]. In that case, the Minister ultimately consented to the bone marrow treatment.

82. Her Honour – in the context in which the Minister had responsibility to consent or not consent to the procedure – noted that it was difficult to see why the Court should make an order: at [4].

83. On counsel seeking some guidance as to why the Court would not make an order, her Honour distinguished the matter from the sort of case referred to in the decision of Young J in Re Baby D (No 2), where Young J had referred to parents, a hospital or medical practitioners properly seeking Court authorisation for decisions that are within the “unclear dividing line” discussed in Marion’s Case.

84. Her Honour stated at [11]-[12]:

11. This is of course a different case. This is a case in which it is accepted that a parent, or a person with parental responsibility, can weigh up the matters that the medical practitioners have carefully placed before them and either give consent or not give consent; albeit that Mr Harris suggested that it is a matter that comes close to the “unclear dividing line”, to which Young J referred. However the Minister now accepts that it is not over the line and that the Minister can give the consent and will do so.

12. The court’s resistance to the making of an order in this case is because it is unnecessary. When the court is exercising its parens patriae jurisdiction it must be careful not to intrude unnecessarily into matters. It is understandable that medical practitioners, parents, and those with parental responsibility, would want the imprimatur of a court order, particularly where there is a fear that the treatment may be unsuccessful and the child may perish; but that is not the role of the court in this particular application. However I should say that on the evidence, it seems to me that the Minister would be justified in consenting to this treatment.

85. In The Hospital v S (a minor) [2019] NSWSC 642, Robb J was asked to make declarations which would have the result of discontinuing life support for a three year old boy.

86. His Honour stated at [40]:

40. I should also mention that there is arguably a question in this case concerning the form in which the relief should have been given. The orders that I have made, which are set out above at par 17, take the form of declarations that it will be lawful for the Hospital to act in the manner the subject of each of the declarations. In Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193 at [18]-[21], Brereton J (as his Honour then was) suggested that, where the medical procedure falls within the ambit of the responsibility of the parents to give consent on behalf of a child, the exercise by the Court of its parens patriae jurisdiction to give that consent, when it is withheld by the parents, should take the form of the granting of consent, rather than the authorisation of the proposed medical procedure. His Honour suggested that the granting of authorisation by the Court was only appropriate in a case, such as that considered by the High Court in Marion's Case, where the parents did not have the responsibility to give consent on behalf of the child, and it was a matter for the Court to decide whether or not to authorise the procedure. The better view of the declarations that I have already made is that they have the effect of authorising the discontinuance of S's life-sustaining treatment. They do not have the effect of consenting to that discontinuance on behalf of S. I have made the orders in that form without the question of whether the Court's authorisation is required being determined. As the active parties were not concerned with this distinction, and as the granting of an authorisation will implicitly carry consent with it, I do not consider this distinction to be of significance in the present case.

87. In Hospital v Baby M [2020] NSWSC 1481, Rees J dealt with an application in which a specialist children’s hospital sought orders to authorise cardiac and ear nose and throat surgery on a three-month-old baby girl: at [1].

88. In that case, prior to the hearing commencing, her Honour was informed that the parents consented to the cardiac surgery. It was proposed that the proceedings be stood over to allow that surgery to be performed and Baby M to recover from that surgery and thereafter the parents would consider the ENT surgery.

89. In the circumstances, in light of the parents’ consent, there was no need for the Court to make any order pursuant to the parens patriae jurisdiction.

90. In Marion’s Case, the plurality addressed what is involved in authorisation: at 259. Their Honours stated that when the Court is asked to authorise treatment (in that case sterilisation of an intellectually disabled child) what is sought is not the Court’s consent as, for example, in the signing of hospital forms, but its authorisation. The function of the Court when asked to authorise such treatment (sterilisation) is to decide whether, in the circumstances of the case, that is in the best interests of the child: at 259.

91. There is in the caselaw I have referred to above some differences between what is said to be authorisation per se and consent for treatment.

92. In the circumstances of this case, I determined, in the exigencies of the urgent hearing, to frame the order in terms of authorisation of the administration of depot injections of psychotropic medication to Rosie and authorised the restraint of Rosie necessary to facilitate receipt of treatment.

93. The distinctions between “authorisation” of medical treatment and “consent” for medical treatment were not on the application the subject of detailed submissions and in those circumstances I do not consider it appropriate to express any firm view regarding the differences between what is said to be authorisation per se and consent for treatment, and the question of precisely what is involved in framing of parens patriae orders in terms of authorisation or consent.

Care Act provisions

94. There are certain provisions of the Care Act which address care and the provision of medical treatment in respect of a child or young person (CYP).

95. Without attempting to be exhaustive, it may be noted that:

1. If the Secretary suspects on reasonable grounds that a CYP is at risk of serious harm and is satisfied that it is not in the best interests of the CYP that the CYP be removed from the premises in which he or she is currently located, the Secretary may, instead of removing the CYP from the premises under a power of removal conferred by or under the Care Act, assume the care responsibility of the CYP by means of an order in writing: s 44.

2. The authorised carer of a CYP has authority to consent to medical treatment, not involving surgery, for the CYP on the advice of a medical practitioner and to consent to medical treatment involving surgery that a medical practitioner certifies in writing needs to be carried out as a matter of urgency in the best interest of the CYP: s 157(1)(a)-(b).

3. The authorised carer of a CYP has authority to correct and manage the behaviour of the CYP, subject to the regulations: s 157(1)(c).

4. The authorised carer of a CYP is authorised to exercise any aspects of parental responsibility that are delegated to the authorised carer in accordance with the Care Act (which aspects include the power to give consent to medical and dental treatment involving surgery, other than urgent treatment): s 157(2).

5. A carer may restrain a CYP, but only on a temporary basis and only to the extent necessary to prevent injury to any person, if in the opinion of the relevant carer, the CYP is behaving in such a manner that, unless restrained, he or she might seriously injure himself or herself or another person. Any such restraint must be consistent with any behaviour management requirements of the care plan applying to the CYP, otherwise reasonable force may be used: s 158.

6. If the Secretary or a police officer believes on reasonable grounds that a child is in need of care and protection, the Secretary or the police officer may serve a notice in the prescribed form naming or describing the child and requiring the child to be forthwith presented to a medical practitioner specified or described in the notice at hospital or some other place so specified for the purpose of the child being medically examined: s 173(1).

7. When the child is presented to a medical practitioner in such a case, the medical practitioner may carry out or cause to be carried out such medical examination of the child as the medical practitioner thinks fit, including examination at a hospital or place that is not the hospital or place specified in the notice: s 173(4).

8. The carrying out of the medical examination is not limited to an examination made only by use of the senses but includes the taking and analysis of samples and the use of any machine or device that enables or assists in the examination of the person: s 173(5).

9. No proceedings lie against the Secretary, medical practitioner, police officer or person employed in hospital or other place at which the child is examined for or on account of any act, matter or thing done or ordered to be done by such a person or purporting to be done for the purpose of acting in accordance with the provisions of s 173 if that person has acted in good faith and with reasonable care: s 173(6).

10. A medical practitioner may carry out treatment on a CYP without the consent of the CYP or the parent of the CYP if the medical practitioner is of the opinion that is it is necessary, as a matter of urgency, to carry out the treatment on the CYP in order to save his or her life or to prevent serious damage to his or her health: s 174(1).

11. Medical treatment carried out on the CYP under s 174 is taken, for all purposes, to have been carried out with the consent of: in the case of a child, a parent of the child, or, in the case of a young person, the young person: s 174(3).

12. There are further provisions which enable a medical practitioner to carry out special medical treatment (which term includes any medical procedure, operation or examination) which is relevantly defined to incorporate (without intending to be precise): treatment to have the effect of rendering permanently infertile the person; treatment for the purpose of contraception or menstrual regulation; any medical treatment that involves the administration of a drug of addiction within the meaning of the Poisons and Therapeutic Goods Act1966 (NSW); any medical treatment that involves an experimental procedure that does not conform to the document entitled National Statement on Ethical Conduct in Human Research 2007 (published by the National Health and Medical Research Council in 2007 and updated in 2013) or other treatment prescribed by the regulations: s 175(2).

Determination

96. Rosie is currently age 12. On any view of the matter, Rosie’s liberty is directly affected. Accordingly, her personal rights are affected in a very material way.

97. As recently as late last year, Ms Luke referred to evidence before the Court that Rosie had a number of diagnoses which may bear upon her ability to instruct a solicitor, including Attention Deficit Hyperactivity Disorder and Disinhibited Social Engagement Disorder: Rosie (No 2) at [124].

98. Ms Luke also referred to the evidence before the Court of Rosie’s self-harming behaviour and admission to hospital on a number of occasions arising from her distress: Rosie (No 2) at [125].

99. There is no express reference in s 158 Care Act to restraint for the purposes of medical treatment.

100. In Re ELM (supra), Brereton J (as his Honour then was) held that a person having care responsibility for child under s 157 Care Act has at least concurrent authority with those having parental responsibility to consent to medical treatment for the child, not involving surgery, on the advice of a medical practitioner: at [19].

101. In that case, his Honour held that in the event of the Director-General making an order under s 44 Care Act in respect of the child, a doctor providing treatment for that child, in accordance with the Director-General’s consent under s 157(a) and (b), would do so pursuant to a valid and sufficient consent.

102. The terms of s 158 expressly suggest that it would apply in cases where the CYP is behaving in a manner as a consequence of the use of alcohol or an illegal substance or may be using a weapon in a dangerous manner.

103. However, s 158, whatever its ambit, only permits a temporary restraint.

104. I am satisfied that the provisions of s 158 Care Act do not cover the present situation, where ad hoc restraint addressed to the provision of medications may be necessary over a number of days or weeks.

105. The provisions of s 173 appear mainly addressed to medical examination per se (by use of the senses including the taking and analysis of samples and the use of machines and devices that enable examination) but do not seemingly extend to IMI of medication.

106. The provisions of s 174 regarding emergency medical treatment require a threshold of the treatment being carried out on the CYP in order to save his or her life or to prevent serious damage to his or her health. Conceptually, that might apply to some of the circumstances for Rosie. However, there could be some doubt about its applicability.

107. Clearly the provisions of special medical treatment pursuant to s 175 do not apply.

108. There is some evidence before the Court that Rosie’s refusal to take her prescribed medications resulted in Rosie displaying not merely physical and verbal aggression and threats to harm others but also suicidal ideation and self-harm.

109. Even if were the case that some particular provision of the Care Act might be applicable, whether those that I have mentioned above or some other provisions enable the Secretary and the Minister to act is debatable.

110. The requirements of many of the Care Act provisions in circumstances of urgency might at least in some cases be clunky operationally and require parental decision-makers, in this case the Minister and Secretary, to engage in a degree of precise decision-making as to whether any given statutory provision applies, on which minds might reasonably differ.

111. There is some tension in a number of the decisions I have referred to as to whether the Court ought to intervene in cases where those charged with parental responsibility have been presented with clear and appropriate medical advice.

112. I am mindful of the fact that it has been said that the parens patriae jurisdiction is exceptional and, generally, the greater the interference with the liberty of the CYP the greater the caution that is required: Re Sally [2009] NSWSC 1141 at [57] per Slattery J.

113. There may be occasion for revisiting with greater precision guidelines that inform how the jurisdiction may be exercised.

114. As I have noted above, that is not a task which on this occasion I propose to undertake.

115. The circumstances of this case satisfied me that there had been and can be fairly described as a significant deterioration in Rosie’s mental health and behaviour over a period of approximately 10 to 12 days.

116. In terms of the medical evidence, I took into account the fact that the treatment proposed is essentially premised on the fact that Rosie would receive medication not significantly different to that which she had already been receiving nor materially different in dosage. The proposal was that it be administered in a different form mainly by IMI (with appropriate restraints to effect that) rather than orally.

117. The order was framed in slightly wider terms at the request of Mr Dean to give some flexibility over the use of a like type of medication if the particular medication ordinarily used was for some reason not available or for good reason not able to be used.

118. Although the order was framed as “until further order”, it is clear, as discussed with Mr Dean on the application, that the Court is keen to keep the supervision over the developing situation with Rosie and to be provided with an appropriate report and for the matter to come back before the Court for such report to be considered and discussed so that Rosie’s health and medical treatment conducive to that is appropriately addressed.

Orders

119. The orders of the court were as follows:

1. Orders, that until further order, the Court authorises the administration of depot injections of psychotropic medication to the young person known as “Rosie” in accordance with any treatment regime(s) recommended for Rosie by her treating professionals.

2. Orders, that until further order, the Court authorises the restraint of “Rosie” to the extent that it is necessary in order to facilitate Rosie receiving the treatment authorised by order 1.

3. Orders, that until further order, the Court authorises “Rosie” to be conveyed to a hospital for the purposes of receiving the treatment authorised by order 1, and for reasonable force to be used to the extent that may be necessary in order to convey her to the hospital.

4. Orders, that until further order, the Court authorises “Rosie” to be restrained at a hospital to the extent that may be necessary in order to facilitate Rosie receiving the treatment authorised by order 1.

5. Orders, that leave is granted to the Plaintiffs to provide a copy of these orders to NSW Health.

6. Orders, that the parties have liberty to apply with 24 hours’ notice.

7. Orders, that the matter stand matter over to 9:00am on Wednesday, 8 February 2023 before Meek J.

8. Orders, that leave be granted to the Plaintiffs to disclose to NSW Health the true name and date of birth of Rosie for the purpose of giving effect to these orders.

9. Orders, that an update regarding Rosie’s position consequent on the making of these orders be provided to the Associate to Meek J by 4:00pm on Tuesday, 7 February 2023.

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Decision last updated: 07 February 2023