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Re Rosie (No 3)

Re Rosie (No 3)

Case [2023] NSWSC 37 3 February 2023

Child Welfare

Parens Patriae

Medical Treatment Authorization

Family Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Rosie (No 3)

Details

AGLC: Re Rosie (No 3) [2023] NSWSC 37
Case: [2023] NSWSC 37
Decision Date: 03 February 2023

CaseChat Overview and Summary

The case of Re Rosie (No 3) involved the Secretary and Minister for the Administration of the Mental Health Act 2007 (NSW) bringing an urgent oral application for orders concerning the medical treatment and restraint of Rosie, a young girl. The court had previously made several secure accommodation and related orders for Rosie. However, her mental health and behaviour had deteriorated significantly, leading to her hospitalisation and a scheduling order under the Mental Health Act. Evidence was presented of Rosie's refusal to take prescribed medication, threats to harm others, suicidal ideation, and self-harm.

The primary legal issues before the court were the scope of parental responsibility, the distinction between authorising and consenting to medical treatment, and the appropriateness of framing parens patriae orders in terms of authorisation or consent. The court noted that while it was not appropriate to express a firm view on the differences between authorisation and consent, given the urgency of the application, the orders were framed in terms of authorisation. The proposed treatment involved administering medication that was not significantly different from what Rosie had already been receiving, but in a different form, mainly by intramuscular injection (IMI) rather than orally.

The court concluded that the proposed treatment was appropriate given the circumstances. It authorised the administration of depot injections of psychotropic medication, recognising the necessity to address Rosie's deteriorating mental health and ensure her safety and well-being. The orders were made in the interest of Rosie's welfare, reflecting the urgent need for medical intervention and restraint to manage her condition effectively.

Orders