Re YL

[2025] NSWSC 75

Supreme Court

New South Wales

Medium Neutral Citation:

Re YL [2025] NSWSC 75

Hearing dates:

18 February 2025

Date of orders:

18 February 2025

Decision date:

19 February 2025

Jurisdiction:

Equity - Duty List

Before:

Williams J

Decision:

Orders made authorising administration of blood products – see [12] and [19]-[20].

Catchwords:

CHILD WELFARE – Parens patriae jurisdiction – Application by Local Health Authority for orders authorising administration of blood products to child if necessary during surgical procedures for resection of brain tumour – Child’s parents consent to surgical procedures but withhold consent to the administration of blood products which is contrary to their faith – Best interests of child.

Legislation Cited:

N/A

Cases Cited:

Hospital v Baby M [2020] NSWSC 1481

Re Jules [2008] NSWSC 1193

Re Rosie (No. 2) [2022] NSWSC 1750

Re Rosie (No. 3) [2023] NSWSC 37

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

Texts Cited:

N/A

Category:

Principal judgment

Parties:

[Suppressed] Local Health District (Plaintiff)
LK (A Pseudonym) (Second Defendant)
DL (A Pseudonym) (Third Defendant)

Representation:

Counsel:
Mr T Grooby (Solicitor Advocate) (Plaintiff)
Second and Third Defendants (No Appearance)

Solicitors:
Crown Solicitor for New South Wales (Plaintiff)
Second and Third Defendants (No Appearance)

File Number(s):

2025/64948

Publication restriction:

Yes

Judgment

1. These are my reasons for making orders in the exercise of the Court’s parens patriae jurisdiction at the conclusion of an urgently convened hearing on the afternoon of 18 February 2025.

2. These proceedings concern a 7-year-old child, whose name has been anonymised to YL.

3. YL was diagnosed as suffering from a brain tumour on 14 February 2025 after presenting to the Emergency Department of a hospital in New South Wales earlier that day following a period of being unsteady on their feet and falling over, with associated intermittent frontal headaches and vomiting.

4. Later that same day, YL was transferred to another hospital in New South Wales, where they were admitted to the Paediatric Intensive Care Unit at 1:00am on 15 February 2025. There, YL underwent an MRI which confirmed the presence of a brain tumour. The doctors responsible for YL’s care at that hospital formulated a plan for surgery to remove (or “resect”) the tumour, or as much of it as possible. The medical term for the tumour with which YL has been diagnosed is a posterior fossa tumour with obstructive hydrocephalus and radiological tonsillar herniation. YL’s treating paediatric neurooncologist and haematologist (to whom I will refer in these reasons as their treating specialist) has given evidence explaining that the tumour is located in the posterior fossa and is blocking the flow of cerebrospinal fluid and causing brain herniation.

5. It is not clear whether or not YL’s tumour is malignant. This can only be determined by pathology testing of the tumour itself after it is wholly or partly removed. However, in the opinion of YL’s treating specialist, the tumour is very likely an aggressive tumour, and YL’s prognosis is very dire if the tumour is not removed completely or at least reduced in size (or “debulked”), whether it is malignant or not. That is because the impact of the tumour on the flow of cerebrospinal fluid will cause symptoms of the kind that YL is already experiencing, and those symptoms will worsen over time and eventually become so severe that the part of YL’s brain that provides respiratory function will shut down. In addition, the tumour itself will cause neurological damage as it grows. According to the evidence of YL’s treating specialist, the hospital’s Neurosurgical Registrar has advised that the surgery is between 90 and 95 per cent likely to succeed in removing or reducing the size of the tumour, with a 5 per cent risk of major complications or death.

6. YL’s treating specialist has given evidence that he is in no doubt that surgery needs to occur to remove as much of the tumour as possible, and that this needs to occur quickly because it has already been necessary for an External Ventricular Drain (or “EVD”) to be inserted into YL’s brain to remove intracranial pressure caused by excess cerebrospinal fluid build-up. This procedure occurred in the early hours of 16 February 2025 after YL had two episodes of loss of consciousness with possible seizures. The EVD is providing some immediate relief in relation to YL’s acute symptoms, but it is only a temporary measure. According to YL’s treating specialist, it is best practice for an EVD to be used for no longer than 7 days. If an EVD is used for a longer period, there is an increased risk of infection such as meningitis and encephalitis. The proposed surgery to remove YL’s tumour needs to occur a number of days prior to the removal of the EVD because the EVD is required to remain in place to support YL’s recovery by reducing swelling immediately after the surgery. Accordingly, best practice requires that the proposed surgery should take place several days prior to 23 February 2025 in order to allow time for the EVD to remain in place to aid YL’s post-surgery recovery without exceeding the 7-day best practice period.

7. YL’s treating specialist has given evidence that one of the risks associated with the proposed surgery is that YL may lose a lot of blood quickly, which would require a blood transfusion to be given in order to save their life and/or to prevent major neurological damage. In the opinion of YL’s treating specialist, alternatives to a blood transfusion that may be available for patients suffering from chronic conditions are not appropriate for YL due to the acute state of their condition.

8. The hospital has currently scheduled the proposed surgery for YL for 19 February 2025. YL’s treating specialist has given evidence that, if that surgery is cancelled or postponed for any reason, then it will be uncertain when the surgery can be rescheduled having regard to the competing demands for theatre time and for the time and skills of the appropriate clinicians (including a neurosurgeon and doctors from the oncology team). Thus, it may not be possible for the surgery to be scheduled in sufficient time for the EVD to be removed from YL’s brain within 7 days of its insertion. This would result in the increased risk of serious infection, to which I have referred above. As I understand the treating specialist’s evidence referred to at [6] above, there is also a real risk that YL’s condition may deteriorate further during any period in which the surgery is delayed.

9. YL’s treating specialist gave evidence that he has discussed with YL’s parents the nature of YL’s condition and prognosis, the proposed surgery to remove as much as possible of the tumour, the risk of blood loss during that surgery, the potential need to administer blood products to YL – that is, to administer a blood transfusion – in order to save their life and/or to prevent the major neurological damage that would otherwise result from such blood loss, and the suitability of alternatives to a blood transfusion in the event of major blood loss during surgery in YL’s case. YL’s treating specialist engaged in those discussions with YL’s parents on 15 February 2025, on 16 February 2025, and prior to the hearing of these proceedings on 18 February 2025. The discussion on 15 February 2025 was conducted in English, which is not the first language of YL’s parents. The treating specialist formed the view that YL’s mother appeared to understand the discussion, but YL’s father required the mother to translate for him. The discussions on 16 and 18 February 2025 were conducted with the assistance of an interpreter.

10. During those discussions, YL’s parents have given consent to the proposed surgery. However, YL’s parents have declined to give consent to the administration of blood products to YL should that be necessary during the surgical procedure, as it would be contrary to their Jehovah’s Witness faith. That has remained their position after YL’s treating specialist explained to them that, out of respect for their faith, the medical team would not administer blood products to YL unless it became necessary to address the risks to which I have referred above.

11. YL’s treating doctors informed YL’s parents prior to 18 February 2025 that they would apply to this Court for authorisation to administer blood products if necessary if the parents did not give their consent. YL’s parents acknowledged that they understood that the medical team were acting in what they considered to be YL’s best interests in making the application. At their meeting with YL’s treating specialist on the morning of 18 February 2025, YL’s parents were provided with a letter from NSW Health confirming that the relevant Local Health District would make that application to the Court, and that the application would be likely to be heard later that afternoon. The letter offered that NSW Health would pay YL’s reasonable legal costs associated with the application so that they could receive independent legal advice, and provided them with contact details for the Law Society of New South Wales in the event that they wished to engage legal representation. The plaintiff also adduced evidence that the Summons and the supporting affidavit of YL’s treating specialist was served on YL’s parents by email sent shortly before 12:00pm on 18 February 2025 to an email address nominated by YL’s mother to hospital staff for that purpose. After receiving those materials, YL’s parents confirmed by email to the Crown Solicitor’s Office and in conversations with YL’s treating specialist and with other hospital staff that they did not wish to be heard at the hearing of the plaintiff’s application.

12. The relevant Local Health District commenced these proceedings by Summons filed in Court at 2:00pm on 18 February 2025 seeking orders authorising the medical practitioners treating YL, including any qualified member of the nursing staff at the hospital to which YL is presently admitted and any qualified medical practitioner employed by or contracted to that hospital, to administer to YL blood, blood products, platelet therapy, and the reinfusion of YL’s own blood, during YL’s admission for the surgical procedures of posterior fossa craniotomy and debulking of tumour, if that is necessary in order to mitigate the risk of neurological damage or death in the opinion of any such qualified medical practitioner (being an opinion formed while seeking to avoid any unnecessary use of, and seeking to minimise the use of, blood transfusion procedures). I will use the shorthand expression “administration of blood products” to encapsulate the detailed description in the Summons of the medical treatment for which the Court’s authorisation is sought.

13. The Summons named YL as the first defendant, and YL’s mother and father as the second and third defendants. Upon further consideration, counsel for the plaintiff suggested that YL need not be a defendant to the proceedings. I was satisfied that it was appropriate to remove YL as a defendant, applying the principles articulated by Meek J in Re Rosie (No. 2) [2022] NSWSC 1750 at [205]ff to all the circumstances of this case, and I made an order to that effect. I also made orders anonymising the names of the second and third defendants. I made orders abridging the time for service of the Summons and supporting evidence on the second and third defendants, and permitting substituted service to the email address referred to above. I was satisfied based on the evidence referred to above that the second and third defendants had been served, that they were aware of the substance of the application and the fact that it was to be heard that afternoon, and that they did not wish to be heard. The hearing then proceeded in the absence of the second and third defendants. YL’s treating specialist, whose affidavit the plaintiff read in support of the application, appeared by audio visual link and I had the opportunity to ask him the limited questions I had after reading his affidavit. His answers clarified and updated certain aspects of his affidavit evidence. The treating specialist has more than 25 years’ experience as an oncologist and is the paediatric neurooncologist and haematologist at the hospital at which YL has been a patient since 14 February 2025 and where they are to undergo the proposed surgery. I have summarised the substance of the treating specialist’s evidence as a whole above. I accept that evidence, which was detailed and cogent and which was not contradicted by any other evidence adduced in these proceedings.

14. The Court was asked to determine the application immediately following the conclusion of the hearing on 18 February 2025, for the reasons outlined at [8] above.

15. At the age of seven years, YL is not capable of consenting to the administration of blood products, particularly in circumstances where they are presently suffering from the symptoms of the brain tumour and the physical and emotional trauma that they have already endured from the emergency procedure to reduce intracranial pressure on 15 February 2025: Re Rosie (No. 3) [2023] NSWSC 37 at [64] (Meek J). The power to consent to the administration of blood products falls within the ordinary scope of parental authority to consent to medical intervention in respect of a child: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218 at 237-240 and 249-254 (Mason CJ, Dawson, Toohey and Gaudron JJ). As I have already explained, YL’s parents have declined to give that consent on the grounds that the administration of blood products is contrary to their Jehovah’s Witness faith.

16. The plaintiff’s application invokes the Court’s parens patriae jurisdiction by seeking to have the Court exercise parental authority on behalf of YL to consent to the administration of blood products in association with the forthcoming surgery on the basis that, by withholding their consent, YL’s parents are not exercising their parental authority in the best interests of YL.

17. I respectfully agree with and adopt Rees J’s summary of the principles applicable to the exercise of the parens patriae jurisdiction in cases involving consent or withholding of consent for medical treatment for a child, in Hospital v Baby M [2020] NSWSC 1481 at [3]-[7]:

“3. In considering how to approach this matter, it is worth remembering the nature of the parens patriae jurisdiction, as explained by Lord Eldon in Wellesley v The Duke of Beaufort (1827) 2 Russ 1 at 20 (38 ER 236 at 243):

[It] belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them.

4. As Lord Esher MR described the jurisdiction in R v Gyngall [1893] 2 QB 232 at 241:

The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of the children, and must exercise that jurisdiction in the manner in which a wise, affectionate and careful parent would act for the welfare of the child.

5. In exercising the parens patriae jurisdiction, “the overriding criterion to be applied in the exercise of parental authority on behalf of a child is the welfare of the child objectively assessed”: Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 (Marion’s case) at 240 per Mason CJ and Dawson, Toohey and Gaudron JJ. Brennan J observed (at 280) that, although the jurisdiction is extremely broad, it is exercised cautiously in the manner stated by Lord Fitzgibbon LJ in Re O'Hara [1900] 2 IR 232 at 240 (and adopted by the House of Lords in J v C [1970] AC 668 at 695) as follows:

In exercising the jurisdiction to control or to ignore the parental right the Court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be superseded or suspended.

Further, Brennan J noted there must be some clear justification for a Court's intervention to set aside the primary parental responsibility to attending to the welfare of the child: at 280.

6. In Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193, Brereton J applied these principles. The circumstances of Re Jules should be borne in mind. The parents of a child did not consent to their child being vaccinated and, although the Court made orders authorising a hospital to administer a vaccination, the parents did not bring the child to hospital in compliance with the orders and ultimately the services of the New South Wales Police were engaged to try and find the child. That, of course, is quite different to the circumstances here.

7. Brereton J noted that the parens patriae jurisdiction empowers the Court to assume and delegate parental responsibility: at [14]. At [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 being 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 parent. …

His Honour noted that the Court may make decisions “in place of the parents”: at [16]. Where the Court permits medical treatment of a child, it exercises a power that would otherwise be exercisable by a parent of the child and consents “in place of a parent” having consented to the treatment: at [18]. The jurisdiction involves “an assumption of parental responsibility by the Court from parents”: at [20].”

18. Having regard to all of the evidence summarised above, I consider that it is in YL’s best interests to receive blood products during their admission for the surgical procedures of posterior fossa craniotomy and debulking of tumour, if that is necessary in order to mitigate the risk of neurological damage or death to YL in the opinion of a qualified medical practitioner treating YL during their admission for those surgical procedures. I have come to that conclusion after due consideration of the contrary views of YL’s parents, who have declined to consent to the administration of blood products to their child on the grounds that it would be contrary to the parents’ faith. I respect their views, which they have been forced to form in a very short time under the most traumatic and distressing circumstances. I do not doubt that they have acted in what they genuinely consider to be in their child’s best interests in deciding to withhold consent for the administration of blood products on the grounds that it would be contrary to their faith. However, according to the medical evidence adduced in these proceedings, that decision exposes YL to the risk of death or serious neurological damage resulting from blood loss, in circumstances where blood loss is a risk inherent in the surgery that is urgently required to remove or reduce the tumour in order to improve YL’s currently dire prognosis. I consider that it is in YL’s best interests that they should not be exposed at only 7 years of age to that risk of death or serious neurological damage, contrary to expert medical advice and on the basis of their parents’ faith, in circumstances where YL has not yet reached an age at which they would be capable of making an informed choice about whether to adopt that faith as their own.

18. For those reasons, I determined at the conclusion of the hearing on 18 February 2025 that the welfare of YL, objectively assessed, requires that orders be made in the exercise of the Court’s parens patriae jurisdiction authorising the administration of blood products to YL during their admission for the surgical procedures of posterior fossa craniotomy and debulking of tumour, if that is necessary in order to mitigate the risk of neurological damage or death to YL in the opinion of a qualified medical practitioner treating YL during their admission for those surgical procedures. I immediately made the order sought in the Summons to that effect.

19. That order, having been made as an exercise of parental responsibility in the Court’s parens patriae jurisdiction, operates as a consent to the administration of blood products to YL in accordance with the terms of the order, in place of YL’s parents having consented, so that it is lawful for the treating qualified medical practitioners and qualified nursing staff assisting them to administer blood products to YL in accordance with the terms of the order. As it is clear from these reasons that the order involves an assumption of parental responsibility by the Court from YL’s parents to the extent of consenting to that treatment, I do not consider that it is necessary to make a further order making YL a ward of the Court in order to clarify the basis on which the Court is acting. No such order was sought: see Re Jules [2008] NSWSC 1193 at [17]-[20] (Brereton J, as his Honour then was).

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Decision last updated: 19 February 2025