Royal Alexandra Hospital v Joseph

[2005] NSWSC 422

CITATION:	Royal Alexandra Hospital v Joseph & Ors [2005] NSWSC 422
HEARING DATE(S):	27/04/05
JUDGMENT DATE :	27 April 2005
JUDGMENT OF:	Gzell J
DECISION:	Order made.

CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Parens patriae juridiction - Order sought by hospital to administer blood transfusion to a Jehovah's Witness child - Child over 16 years - Whether order should be made in opposiiton to parents and child
CASES CITED:	DoCS v Y [1999] NSWSC 644 Director General of the Department of Community Services v "BB" [1999] NSWSC 1169 Re Jessica [2001] NSWSC 1207 and Re Heather [2003] NSWSC 532
PARTIES:	Royal Alexandra Hospital for Children Trading as the Children's Hospital at Westmead - Plaintiff Joseph - First Defendant Father - Second Defendant Mother - Second Defendant
FILE NUMBER(S):	SC 2659/05
COUNSEL:	Mr Alan Sullivan QC - Plaintiff
SOLICITORS:	Blake Dawson Waldron

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

2659/05 ROYAL ALEXANDRA HOSPITAL FOR CHILDREN v JOSEPH & ORS

EX TEMPORE JUDGMENT

1 The Plaintiff, Royal Alexandra Hospital for Children trading as the Children’s Hospital at Westmead, invokes the parens patriae jurisdiction of this court in respect of a child to whom I shall refer as Joseph to protect his identity. Joseph and his parents are members of the Jehovah’s Witness faith and, according to their religion, are opposed to blood transfusions. I have no doubt of the sincerity of their beliefs.

2 Joseph was diagnosed with acute lymphoblastic leukaemia in March 2005 and has been attending the Oncology Unit of the Hospital for treatment. But despite that treatment, his red cell count and platelet count have both fallen and are now both life-threateningly low. His haemoglobin level this morning was 25 g/L. A normal level is in the range of 120-140 g/L.

3 The patient is immobile in Camperdown Ward on mask oxygen. He has a very rapid heart beat and signs of fluid in his lungs have been detected for the first time this morning, indicating that he is now in early high output cardiac failure. It is the opinion of Dr Stevens, Joseph’s attending medical officer, that the patient is now very likely to die of heart failure and/or have a serious or fatal intracerebral haemorrhage within the next 48 to 72 hours if he remains untransfused with red cells and platelets. In addition, there is at least a 50% probability that during the course of tonight Joseph will die of heart failure and/or have a serious or fatal intracerebral haemorrhage if he remains untransfused with red cells and platelets. Because of the intensive nature of the required chemotherapy, there is no likelihood of his bone marrow recovering in sufficient time to correct the current very low levels of red cells and platelets.

4 Transfusion, according to the evidence, is required urgently and will be administered immediately if the court finds favour in the hospital’s application. Once the transfusion is given, the evidence before me indicates that a crisis of the current nature will be averted for up to two months and might not recur at all if the patient’s bone marrow recovers in time, as is expected.

5 Joseph’s parents are in court tonight, it now being 8.30 pm. They have been advised by the medical staff of the hospital that unless Joseph receives the blood transfusion, he is likely to die. They have said that if he is transfused they will not condemn him and will continue to relate to him lovingly as their son.

6 Joseph’s parents addressed the court. His father indicated that Joseph, himself, had made a statement in which he said that he did not wish to receive a blood transfusion and his parents treated him as an adult. I admitted that statement as Exhibit 1. Joseph’s mother asked that if the hospital’s application were to succeed, they be required to give any alternative treatment before the blood transfusion.

7 Unfortunately, I am told by Mr Sullivan QC, who appears for the hospital, that his instructions are that there is no alternative treatment available.

8 Both parents accept that if the treatment is to be ordered, they will stand by their son notwithstanding.

9 There is ample authority that I may act under the parens patriae jurisdiction of the Court to make the orders sought (DoCS v Y [1999] NSWSC 644, Director General of the Department of Community Services v “BB” [1999] NSWSC 1169, Re Jessica [2001] NSWSC 1207 and Re Heather [2003] NSWSC 532.

10 What must guide the court in making a serious decision such as this in opposition to the parents and the child, are the best interests of the child.

11 I have no doubt, on the material before the court, that it is in Joseph’s best interests that he have the blood transfusion. He will die otherwise. His life ought to be spared.

12 It seems to me that I should reject Joseph’s wish that he not have the blood transfusion. Notwithstanding that he is over 16 years old and his wishes must be given serious consideration, he is still a child. I reiterate that what must guide the court is its consideration of his best interests.

13 The orders sought by the hospital are based upon the orders made by Santow J in BB. In my view they are appropriate. They enable the acting head of the Oncology Unit at the hospital to carry out, by any qualified member of the staff of the hospital, or any qualified medical practitioner visiting the hospital, the transfusion of blood and/or blood products and the reinfusion of Joseph’s own blood and any ancillary treatment that any qualified practitioner on the staff of the hospital, or any qualified medical practitioner visiting the hospital, believes at the time to be necessary to prevent serious damage to the health of Joseph, including the alleviation of appreciable risk of serious damage to Joseph’s health.

14 I propose to make orders in those terms. I also propose to stand the matter over before the Duty Judge in a fortnight’s time. That should enable the parents to obtain proper advise in relation to any action they should see fit to bring before the court. A fortnight is not such an extensive time in view of the prognosis of two months with respect to Joseph’s improvement.

15 The orders of the Court are: Upon the solicitors for the plaintiff undertaking to file a summons and a notice of motion by no later than 4.00 pm on Thursday 28 April 2005, I give leave to file in court an affidavit of Mary Bergin sworn on 27 April 2005. I order that the application be dealt with instanter. I make an order in terms of paragraph 1 of the short minutes of orders initialled by me, dated by me and placed with the papers. I stand the matter over before the Duty Judge at 10.00 am on Wednesday 11 May 2005. I order that these orders may be taken out forthwith.