Secretary DFFH v Hage (a pseudonym)
[2024] VSC 764
•10 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S ECI 2024 06580
BETWEEN:
| SECRETARY OF THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | Applicant |
| -and- | |
| BEVERLEY HAGE (a pseudonym) | Respondent |
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JUDGE: | Gray J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 December 2024 |
DATE OF JUDGMENT: | 10 December 2024 |
CASE MAY BE CITED AS: | Secretary DFFH v Hage (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 764 |
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COURTS AND JUDGES — Parens patriae jurisdiction — Pregnant teenage child — Application for order authorising use of chemical, mechanical, physical or other restraint of child where all other strategies have been tried and found inadequate in opinion of treating medical team — Application for order authorising Secretary to determine whether to use restraint in the event of disagreement between treating medical team — Best interests of the child — Children, Youth and Families Act 2005 — Medical Treatment Planning and Decisions Act 2016 — Charter of Human Rights and Responsibilities Act 2006 ss 7(2), 10(c), 13(a), 17(2), 21.
PRACTICE AND PROCEDURE — Open justice principle — Pseudonym order — Interim suppression order Open Courts Act 2013, s 20.
PRACTICE AND PROCEDURE — Supreme Court (General Civil Procedure) Rules 2015, O 15 — Dispensing with requirement for litigation guardian.
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| Counsel | Solicitors | |
| For the Applicant | Ms S Fitzgerald | Legal Services Branch, DFFH |
| For the Respondent | Mr E Myles | Victoria Legal Aid |
| Amici Curiae | Ms F Gordon KC and Dr LK Hilly |
HIS HONOUR:
Introduction
The respondent is 15 years old and 32 weeks pregnant. The applicant Secretary, who is in the position of parent and guardian to the respondent under applicable legislation, claims that the respondent has an intellectual disability and is not competent to make decisions about her own medical treatment.
The Secretary seeks orders from the Court authorising the restraint of the respondent so she can receive medical care that is in her best interests. The most urgent measure at this stage is blood tests for various conditions. This requires the taking of blood, but the respondent has a strong aversion to needles. She has withdrawn her arm and become distressed when medical staff have attempted to take blood, amounting to a withdrawal of consent to the taking of a blood sample.
The blood tests would be in the respondent’s best interests. However, the evidence so far placed before the Court does not establish that the blood tests are urgent enough to justify restraining her to take blood.
The proceeding
After business hours on 5 December 2024 the applicant (Secretary) notified the Court of an application in the parens patriae jurisdiction of the Court in relation to the medical care of the respondent. Sitting in the Practice Court, I heard the application the next day.
Preliminary issues
There were various ancillary and preliminary matters, as follows:
(a) The Secretary applied for orders prohibiting identification of the respondent. Given that the respondent is a minor and the details of the case concerns her medical treatment and other private matters, I was satisfied that it was necessary to avoid prejudice to the administration of justice to order that she only be identified by the pseudonym, ‘Beverley Hage’, and I made an interim suppression order prohibiting any report of the proceeding that would tend to identify her pursuant to s 20 of the Open Courts Act 2013.[1] After news media organisations receive notification of the substantive application for a proceeding suppression order under s 17 of that Act, that application will have to be heard as a matter of urgency.
[1]See Mercy Hospitals v D1 & Anor [2018] VSC 519, [7] (Mercy Hospitals).
(b) Because of the extreme urgency of the application, and the apparent lack of notice of the proceeding to Beverley herself, I took the precaution of seeking the presence of counsel through the Victorian Bar pro bono scheme to act as amici curiae to make submissions in Beverley’s best interests.
(c) It was clear that others were thinking along similar lines: Mr Myles of Victoria Legal Aid appeared at short notice on Beverley’s behalf, although he had not yet had an opportunity to consult with her. Due to the urgency of the matter, I was satisfied that I should, for the hearing on 6 December 2024, dispense with the requirement to appoint a litigation guardian under the Supreme Court (General Civil Procedure) Rules 2015 (Rules), O 15 and grant Mr Myles leave to represent Beverley directly.[2] The amici curiae attended in a consultative role.
(d) Out of an abundance of caution, I requested the Secretary to give notice under s 35 of the Charter of Human Rights and Responsibilities Act 2006 to the Victorian Equal Opportunity and Human Rights Commission.
[2]For the same reasons as Macaulay J gave for dispensing with that requirement in Mercy Hospitals, [8].
The orders sought
The Secretary, by her originating motion, seeks orders in the Court’s parens patriae jurisdiction authorising restraint of Beverley for medical examination and treatment in the following terms, set out in the originating motion:
3.Order 4 applies where all strategies other than the use of chemical, mechanical, physical or other restraint of the child, which in the opinion of the child’s treating medical team are reasonably available and clinically appropriate, have been tried and found inadequate.
4.The Court authorises the use of chemical, mechanical, physical or other restraint of the child; that is reasonably necessary to enable medical examination, medical treatment, medical procedures and surgeries for the child; that have been recommended by a qualified medical practitioner of whom the child is a patient; and that are consented to by the Secretary; where the Secretary considers it to be in the child’s best interests.
5.Where there is disagreement between members of the child’s treating medical team, the Court authorises the Secretary to make a determination whether the use of chemical, mechanical, physical or other restraint of the child is reasonably necessary by balancing the medical advice received from the child’s medical team, taking into consideration the best interests of the child.
The hearing
Ms Fitzgerald, counsel for the Secretary, relied on written submissions and made oral submissions. Her submissions identified the applicable legal principles and potentially applicable legislation. The Secretary’s key arguments in favour of the orders were as follows:
(a) Beverley has a high risk pregnancy and she is likely to go into early labour.
(b) Beverley is not Gillick competent, that is, competent to give or refuse consent to the medical procedures that are likely to be necessary.
(c) Beverley’s obstetric treating doctors have asked the Secretary to authorise the use of restraints in order to undertake urgently needed tests, treatment and planned surgery.
(d) The Secretary, as the person with parental responsibility, has consented to Beverley receiving the recommended tests, treatment and planned surgery. However, medical staff have been unable to perform the urgently needed tests because of Beverley’s resistance, and consider that they will remain unable to provide the recommended treatment and planned surgery without the use of restraint on Beverley. They anticipate that chemical, physical or mechanical restraints may be needed depending on her presentation at the time.
(e) The Secretary has been informed that practitioners at the secure welfare service where Beverley currently resides may not be wholly supportive of the use of restraints to undertake the urgently needed tests, treatment and planned surgery.
(f) That means that it may not be appropriate for the Secretary to exercise parental responsibility to authorise or consent to restraints being applied, without seeking orders from the Court.
(g) The Court should grant the orders because they are necessary in order for Beverley to receive medical examinations and treatments that are in her best interests, and the orders only authorise the minimum reasonable restraints that will enable that medical care to occur.
Mr Myles applied for an adjournment. He submitted that it was unfair to proceed further, and in particular for evidence to be heard, before he had had an opportunity to consult with Beverley. This consultation was likely to be on Monday 9 December 2024. Mr Myles indicated that he would need to consult with his client before he could conduct an appropriate cross-examination of the witnesses called by the Secretary.
Ms Fitzgerald opposed the adjournment, contending that the matter was too urgent to allow it.
I refused the adjournment. I acknowledged that ordinarily procedural fairness would require adequate notice of a hearing and an opportunity for a respondent to consult with her legal representative and be heard. Nothing like this had occurred. However, I considered that it was possible that there might be some aspect of the relief sought that the evidence might establish to be so urgent that it had to be granted immediately, even though proper notice had not been given to Beverley. I indicated that I would only consider granting relief of a very urgent nature. I said I would hear the Secretary’s evidence without prejudice to Mr Myles having the witnesses recalled for further cross-examination if their evidence was to be relied upon on a later occasion for a broader range of relief.
After a short adjournment, Ms Fitzgerald called the evidence on behalf of the Secretary, which was from three witnesses:
(a) Associate Professor Stefan Kane (Dr Kane), a maternal foetal medicine subspecialist obstetrician at the Royal Women’s Hospital, whose affidavit[3] exhibited:
[3]Affidavit of Associate Professor Kane sworn 6 December 2024.
(i) a report made by hospital staff to the Secretary’s department;[4] and
[4]Exhibit ‘SCBK-1’.
(ii) a functional assessment report relating to Beverley;[5]
(b) Dr Kate Darbyshire, a General Practitioner at Youth Support + Advocacy Service (YSAS) who is currently or recently treating Beverley, and who attended in response to a subpoena; and
(c) Mr Robert Begley of the Department of Families, Fairness and Housing, who adopted the text of a draft affidavit that drew on various departmental records,[6] a bundle of which was tendered along with the adopted affidavit.[7]
[5]Exhibit ‘SCBK-2’.
[6]Affidavit of R J Begley initialled by Mr Begley and received as his evidence in chief on 6 December 2024.
[7]Exhibit bundle ‘RJB-1’.
After hearing the evidence and brief submissions, I declined to make any orders. I gave brief oral reasons and indicated that these written reasons would follow.
Factual context
Beverley is under a ‘care by Secretary order’ made pursuant to s 289 of the Children, Youth and Families Act 2005 (CYF Act).[8] Under that order, the Secretary has parental and guardianship responsibility for Beverley, in place of her parents.[9]
[8]Exhibit RJB-1, pp 1-2.
[9]CYF Act, ss 3 (definition of ‘parental responsibility’) and 172.
One of Beverley’s parents is in contact with the Department of Families, Fairness and Housing and knows of this proceeding. However, that parent currently has no views on whether the orders sought by the Secretary should be granted.[10]
[10]Oral evidence of Mr Begley given at the hearing on 6 December 2024.
Beverley is currently a resident at a secure welfare service run by YSAS. Each period of residence at the secure welfare service is capped and cannot extend beyond a particular number of days. Beverley will be leaving the secure welfare service later this month. It is unclear what her residence arrangements will be when her pregnancy reaches full term.
Beverley has visited the Royal Women’s Hospital on referral from the secure welfare service because of her pregnancy.
Currently there are two medical teams who seek to provide medical care for Beverley, referred to in the Secretary’s submissions as:
(a) the ‘secure welfare service practitioners’; and
(b) the ‘obstetric treating doctors’, who are a team of treating doctors at the Royal Women’s Hospital.
The first witness, Dr Kane, has a leadership role in respect of the obstetric treating doctors, although he has not personally treated Beverley. The second witness, Dr Darbyshire, has directly provided primary care to Beverley on multiple occasions at the secure welfare service since the middle of the year, at times when Beverley has been residing at the service.
Applicable law and the Court’s parens patriae jurisdiction
Consent to medical treatment
The application of physical force involved in medical treatment of an adult person with full mental capacity requires consent, or is otherwise an assault.[11]
[11]Secretary, Department of Health and Community Services v JWB and SMB(Marion’s Case) (1992) 175 CLR 218, 233-234.
The question of consent where medical treatment of a child is concerned is more complicated. A child’s parents will ordinarily have the duties and powers of the child’s guardians, an incident of which will be to give or withhold consent for medical treatment. However, parental power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacities and maturity grow, and this rate of development depends on the individual child.[12] A minor 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.[13] This is known as the ‘Gillick test’.
[12]Marion’s Case 175 CLR 218, 237, approving Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
[13]Ibid.
Where there is evidence of intellectual disability in a child, that is a relevant factor, but there is no reason to assume that a disabled child is incapable of giving or refusing consent to treatment, especially if the disability is mild.[14]
[14]Marion’s Case 175 CLR 218, 238.
Children, Youth and Families Act 2005
Because of the order under s 289 of the CYF Act, s 597 of that Act confers power on the Secretary to make decisions on Beverley’s behalf about her medical treatment, provided this is done ‘on the advice of a registered medical practitioner that [the] medical treatment … is necessary’.[15] In making any such decision, the Secretary is subject to safeguards set out in CYF Act ss 8(2), 10 and 11 that promote the best interests of Beverley.
[15]CYF Act, s 597(1)(a)(iii) and (3).
Medical Treatment Planning and Decisions Act 2016
Decision-making about medical treatment in Victoria can be affected by the provisions of the Medical Treatment Planning and Decisions Act 2016 (MTPD Act). One of its stated main purposes is ‘to provide for the making of medical treatment decisions on behalf of persons who do not have decision-making capacity’.[16]
[16]MTPD Act, s 1(b).
A ‘medical treatment decision’ is relevantly defined in the MTPD Act s 3 as a decision to consent to or refuse the commencement or continuation of medical treatment.
The MTPD Act was recently considered by Richards J in a case of a child diagnosed with gender dysphoria who wished to commence puberty suppression treatment with the consent of one parent. Richards J examined the provisions of pt 4 div 2 of the MTPD Act, which applies to medication treatment other than palliative care and special medical procedures.[17] Her Honour observed (notes omitted):[18]
Section 50 provides that, before a health practitioner administers medical treatment to a person who does not have decision-making capacity to make the medical treatment decision, the health practitioner must make reasonable efforts to ascertain if the person has (relevantly) a medical treatment decision maker. The definition of ‘decision-making capacity’ in s 4 is similar to the common law test of Gillick competence, and it is uncontroversial that a child who is not Gillick competent does not have capacity to make medical treatment decisions.
Section 55(4) provides that the medical treatment decision maker of a child is the child’s parent or guardian or other person with parental responsibility who is reasonably available and willing and able to make the medical treatment decision. …
… Under s 58(1), a health practitioner who proposes to administer medical treatment to which Div 2 applies to a person who does not have capacity for that medical treatment, must obtain or ascertain a medical treatment decision in accordance with Div 2. Relevantly here, that involves a decision by the person’s medical treatment decision maker in accordance with s 61.
[17]MTPD Act, s 57.
[18]Re CD, [29(a)-(c)].
Richards J then referred to various legal protections conferred by s 52(1) on a health practitioner who administers medical treatment to a person under pt 4, who believes on reasonable grounds that the requirements of pt 4 have been complied with.[19]
[19]Re CD, [29(d)].
Here, Beverley’s medical treatment decision-maker for the purposes of ss 55(4) and 61 of the MTPD Act is the Secretary, by reason of the order made under s 289 of the CYP Act.
However, counsel indicated that the Secretary was in some doubt about whether the Secretary could authorise restraint for the purpose of the medical treatments recommended by the obstetric treating doctors. I explain this point further, below, when addressing a decision of the New South Wales Supreme Court, Re Rosie.[20]
[20]Re Rosie (No 3) [2023] NSWSC 37 (Re Rosie).
Before leaving the MTPD Act, it is also necessary to refer to the topic of emergency medical treatment.
Section 53(1) of the MTPD Act, subject to certain exceptions, enables a health practitioner to administer medical treatment without consent if the practitioner believes on reasonable grounds that it is necessary, as a matter of urgency, to save the person’s life, prevent serious damages to the person’s health or prevent the person from suffering (or continuing to suffer) significant pain or distress.[21]
[21]See also Marion’s Case 175 CLR 218, 239, referring to the (now repealed) Emergency Medical Operations Act 1973 (NT).
Is a health practitioner able to forcibly restrain the patient in such circumstances, in order to administer the relevant medical treatment? Logic and common sense might suggest that this can be done. However, for the purposes of the MTPD Act, restraint is not synonymous with medical treatment, even where it is impossible to administer particular medical treatment without also applying some form of restraint to the patient. In this regard, in 2022, Quigley J (sitting as President of VCAT) and Deputy President Nihill provided advice in the Guardianship List of VCAT that a guardian’s power to make medical treatment decisions for the represented person did not extend to making decisions ‘authorising forcible physical restraint in order to overcome resistance to medical treatment’.[22] The advice went on to state that it was not possible for such authority to be conferred on a guardian and would have to be the subject of a specific application to VCAT.[23]
[22]HYY (Guardianship) [2022] VCAT 97, [206(a)] (HYY).
[23]HYY, [206(b)–(d)].
Parens patriae jurisdiction
I respectfully adopt what Macaulay J said in Mercy Hospitals[24] about the Court’s parens patriae jurisdiction in its potential application to a case where orders authorising medical treatment for a child are sought (some notes omitted):
The jurisdiction of this Court known as the parens patriae jurisdiction is preserved in Victoria by s 85(3) of the Constitution Act.[25] That jurisdiction, when concerning the protection of children, was described by the High Court of Australia in Marion’s Case. It is an inherent jurisdiction to do what is for the benefit of the child.[26] Further, the High Court pointed out in Marion’s Case that although in a sense the court is supervising the exercise of care and control of infants by parents and guardians, the court’s care is a direct responsibility for those who cannot look after themselves.[27]
[24]See Mercy Hospitals, n 1 above, [45].
[25]Constitution Act 1975; see Re BETH (2013) 42 VR 124, 148 [116] (Re BETH).
[26]Marion’s Case 175 CLR 218, 258.
[27]Marion’s Case 175 CLR 218, 259.
The parens patriae jurisdiction is very broad, is essentially protective, is governed in its exercise by the consideration of the best interests of the child, and must be exercised with caution.[28] In the exercise of the parens patriae jurisdiction on behalf of a child, the particular attributes of the child must remain in clear focus.[29]
[28]Mercy Hospitals, [46], following Osborne J in Re BETH (2013) 42 VR 124, 151 [127].
[29]Mercy Hospitals, [56]. See also Re CD [2024] VSC 456, [25]-[26] (Richards J).
In 2023, Meek J granted an application for orders in the parens patriae jurisdiction of the Supreme Court of New South Wales authorising the administration of injections of psychotropic medication to a child, including necessary restraints of the child, to facilitate receipt of treatment.[30] Meek J considered the relevant provisions of the Children and Young Persons (Care and Protection) Act 2007 (NSW). His Honour observed that many of its requirements:[31]
… 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.
[30]Re Rosie (No 3) [2023] NSWSC 37.
[31]Re Rosie, [110].
The same could be said of the CYF Act and MTPD Act provisions referred to earlier in these reasons.
Meek J also identified a degree of tension in previous decisions 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’.[32]
[32]Re Rosie, [111].
On this issue, counsel for the Secretary noted her instructions[33] that there may not be uniform support for restraining Beverley for the purposes of administering all the recommended medical treatment. Counsel submitted that parental responsibility includes authorisation of restraint of a child where the medical team agrees. The Secretary sought orders from the Court because in this case it was not clear that the medical advice was unanimous, thus justifying the intervention of the Court.
[33]See subparagraph 7(e) above.
Charter of Human Rights and Responsibilities
It is arguable that the proceeding raises questions under the Charter of Human Rights and Responsibilities Act 2006 (Charter). For that reason, I requested the Secretary to give a notice to the Victorian Equal Opportunity and Human Rights Commission pursuant to s 35 of the Charter.
The Court is being asked to authorise a public authority to consent to restraints that appear to engage a number of Beverley’s human rights recognised in the Charter. They include the right in Charter s 10(c), which protects Beverley from being ‘subjected to medical or scientific experimentation or treatment without [her] full, free and informed consent’, her right against arbitrary or unlawful interference with her privacy recognised in s 13(a), her rights to liberty and security recognised in s 21, and her rights as a child recognised in s 17(2), which provides:
Every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child.
The Secretary contended that any limit on these rights was reasonable and proportionate for the purposes of the test in s 7(2) of the Charter. The Secretary submitted that, provided any orders met the overriding test applicable in the parens patriae jurisdiction of being in the best interests of the child, there could be no unlawful infringement of Beverley’s Charter rights.
As noted at earlier in these reasons, at the end of the hearing I concluded that the evidence was insufficient to lead me to grant the urgent relief sought by the Secretary. That meant that it was unnecessary for me to form any conclusions on any of the Charter issues.
Consideration
The key questions for determination at the hearing were:
(a) First, was there a real risk that Beverley would go into early labour imminently?
(b) Secondly, if so, what medical treatments and associated restraints would it be in her best interests to authorise urgently?
(c) Thirdly, if the risk of imminent pre-term labour was remote, were there any medical interventions that were nevertheless so pressingly urgent that they would justify immediate orders for Beverley’s restraint, even without proper notice of this proceeding having been given to Beverley?
First question for determination at the hearing
As to the first question, Dr Kane’s evidence did not establish that there was a real risk that Beverley would go into labour imminently. He explained that a pre-term labour is regarded as a labour before 37 weeks’ gestation. He said that, at present, there was a roughly 8% baseline probability of Beverley having a pre-term labour, perhaps increased due to an observation earlier in the pregnancy identifying a shortened cervix, and increasing by an indeterminate amount with each week that passes. He said Beverley had no current symptoms of early labour.
In short, the substance of the evidence was that Beverley would probably not have a pre-term labour and would probably give birth in about five to eight weeks’ time. Beverley is unlikely to go into labour now, or for some weeks, although with each week that passes from now on, the chance of her going into pre-term labour increases.
Approach to assessment of Beverley’s best interests
As already mentioned, in considering whether to make orders in Beverley’s best interests in exercise of the Court’s parens patriae jurisdiction, I must not make assumptions about Beverley’s intellectual disability, but must consider her capacity individually.
Dr Kane gave evidence, based on a functional assessment report for Beverley dated August 2024[34] that:
[Beverley] ‘has been diagnosed with several medical and developmental conditions that significantly impact her daily functioning and overall quality of life.’
[34]Exhibit SCBK-2, see also Exhibit RJB-1, pp 14-46. The report states it was prepared by Alex Billett, but appears to be signed by Jerome Copeman, Occupational Therapist, on 9 September 2024.
Relevantly, the report notes a diagnosis of ‘Moderate Intellectual Disability’. The report states:
‘[Beverley] has an IQ of 45, placing her in the moderate range of intellectual disability. This significantly affects her cognitive abilities, including her capacity for problemsolving, planning, understanding complex information, and engaging in safe social interactions.’
An earlier assessment by a psychologist, in 2020, was adduced as part of Mr Begley’s evidence[35] but is less probative because of its age and affords no greater insights. Further assessment reports forming part of Mr Begley’s evidence included a report from a speech pathologist in August 2023,[36] which included information that Beverley:
… has a complex psychosocial background and a history of exposure to childhood trauma, … These consistent changes in environment have dramatically effected [her] health in all aspects. …
[She] presents with many behaviours of concern. She is at significant risk of sexual exploitation, and does not have a solid understanding of the importance of her safety and how this behaviour [jeopardises] her safety. … Additionally, [she] has a history of running away from her residential care placement.
[35]Exhibit RJB-1, pp 3-13.
[36]Exhibit RJB-1, pp 47-58.
An assessment report titled ‘Assessment of Sexual Knowledge’ dated July 2024[37] contains the following:
[Beverley] does have limited sexual knowledge in a number of areas, in addition to some unhelpful and likely problematic attitudes with regard to sex and relationships. With regard to problematic socio-sexual behaviours, the following risk factors were identified from the assessment: Intellectual disability, social isolation as [she] does not have friendships of a similar age, victim of abuse and trauma, fixation with males, and involvement of DFFH. In the assessment, [she] displayed a basic awareness of body parts, sexuality, and sexual practices but lacked understanding of the biological aspects of sexual arousal and intercourse, particularly from a female perspective. This suggests that [she] has likely not received formal sexual education and might have acquired her knowledge through exposure only. Additionally, her grasp of contraception and the related risks of sexual intercourse is limited, which is a significant concern. More troubling is her lack of knowledge in several critical areas, including limited knowledge of protective behaviors, sexual health screenings, sexually transmitted infections (STIs), contraception, various types of relationships, consent, and the distinction between legal and illegal relationships with the age of consent.
[37]Exhibit RJB-1, pp 59-68.
Beverley may not have a proper understanding of the medical treatment proposed by her obstetric treating doctors, and in particular she may not appreciate how important it is that she have her blood taken for blood tests.
Second question for determination at the hearing
Dr Kane’s evidence was that the following medical treatment should be provided as part of standard care for Beverley, and ‘may require the use of restrictive practices (chemical and/or physical and/or mechanical) in circumstances where [she] is unable to cooperate with the administration or performance of the medical treatment’:
a. Blood test - this is required as soon as possible (no more than 1 week).
b. Internal examinations - there is no immediate plan to perform an internal examination. However, if [Beverley] presented bleeding, in labour and/or threatened preterm labour, the standard of care would be to perform an assessment which includes digital or speculum examination to confirm the clinical situation.
c. Intravenous Cannulation - will likely require at time of general anaesthetic. May also be required if she experiences antenatal or postnatal bleeding or if there is evidence of infection and intravenous antibiotics are required.
d. Administration of general anaesthetic for caesarean section - this may be a total intravenous anaesthetic or a face mask and gas.
e. Responding when she wakes from general anaesthetic - some patients require further chemical sedation for their own safety in the immediate post-operative phase.
f. Palpation of abdomen - completed in the immediate post-operative phase to ensure uterus is contracted.
Dr Kane also gave evidence that it was in Beverley’s interests for the obstetric treating doctors to insert an intrauterine (contraceptive) device (IUD) if Beverley has to have a caesarean section and is under general anaesthetic:
7. As outlined in exhibit SCBK-1, the Women's has recommended contraception. The recommendation is for an IUD inserted at the time of the caesarean section whilst [Beverley] is under a general anaesthetic.
8. An IUD can last up to 8 years but can be removed any time. At the time of removal, a patient's baseline rate for fertility will return. As outlined in exhibit SCKB-1, the recommendation for contraception is a medical recommendation to avoid a further pregnancy in the 18 months following the caesarean section which carries a risk of uterine rupture. As outlined in SCKB‑1, uterine rupture is a serious complication and would require an emergency operation and may result in fetal or maternal death.
With the exception of sub-paragraph (a), the other categories of medical treatment mentioned by Dr Kane and summarised above are likely only to arise (if at all) at the time Beverley begins to go into labour.
Because of Dr Kane’s evidence that there is no real risk of imminent labour, I did not consider the second question at the hearing in detail. I did not give detailed consideration to making any orders restraining Beverley for the purposes of the medical treatments in categories (b)–(f), still less the insertion of an IUD.
After hearing the evidence of Dr Kane about the low risk of Beverley going into labour for some weeks, I expressed a preliminary view that the only issue of potentially sufficient urgency that might justify an order made without proper notice to Beverley, appeared to be the question of whether to authorise the application of restraints to enable blood to be taken from her for blood tests for conditions identified by Dr Kane.
I now turn to that issue.
The third question for determination at the hearing
The only real question that remained was whether I should order restraint of Beverley so blood tests could be performed.
Dr Kane and Dr Darbyshire gave evidence that Beverley has a strong aversion to having blood samples taken from her, and to needles generally. In this regard, I was satisfied that:
(a) In late July 2024, Beverley was ‘encouraged to undertake a blood test’. However, ‘she reported disliking needles and informed staff she would think about it’.
(b) In late September, during an antenatal appointment, Beverley was referred for a blood test. The referral was provided to her support worker.
(c) In early October, during an antenatal appointment, staff advised her of the requirement ‘to have a blood test prior to the next appointment’.
(d) The blood test did not occur.
(e) In late November, during an antenatal appointment, Beverley refused a blood test. The treating staff explained ‘why a blood test was required and how it would be performed. Further, the treating staff had prepared Nitrous Oxide and Lignocaine gel to assist with [her] experience and minimise any pain’, with the consent of the Secretary. Beverley declined the blood test and ‘became emotionally upset. Further, her body language displayed that she was not comfortable to have the test performed. She agreed to consider a blood test at the next appointment.’
(f) On 4 December 2024 Beverley again refused a blood test, in the following circumstances:
The treating staff had explained why a blood test was required and how it would be performed. Further, the treating staff had prepared Nitrous Oxide and Lignocaine gel to assist with [her] experience and minimise any pain. However, after a torniquet was placed on [her] arm, she began screaming, pulling her arm away, throwing her arms around and kicking. In the circumstances, staff were not able to safely perform the blood test without the use of restraints.
Dr Kane’s evidence was that blood tests for the following conditions were advisable for Beverley:
Full Blood Count
Blood group and antibody screen
Hepatitis B serology
Hepatitis C serology
HIV
Syphilis serology
Rubella immunity
Varicella immunity
Ferritin (iron stores)
Vitamin D levels
If at risk of B12 deficiency-Vitamin B12 levels
If under 25 years: STI screen-gonorrhoea and chlamydia (first pass urine)
Also could consider in high risk pregnancies:
Renal function tests: UEC Liver function tests: LFTs Thyroid function tests: TFTs
A urine test earlier in Beverley’s pregnancy showed that she had a sexually-transmitted disease — chlamydia.
Dr Kane gave particular evidence, and I accept, that it would be in accordance with standard medical care for Beverley to be tested for hepatitis B and C, syphilis and anaemia, even though she shows no overt symptoms of these conditions. If she does have them, the earlier treatment can commence the better. As for anaemia, Dr Kane accepted that precautionary treatment without injections can in fact commence now, via oral iron supplements.
Dr Kane conceded under cross-examination that none of these blood tests are needed urgently to avert a risk to Beverley’s life and health. Rather, as Dr Kane put it, the blood tests are needed to provide Beverley with a proper standard of medical care.
There was no expert evidence before the Court explaining what, if any, psychological impact might be suffered by Beverley if she is restrained so that blood samples may be taken from her involuntarily. During cross-examination of the Secretary’s witnesses, Mr Myles suggested that Beverley might suffer harm if this were to occur, including a loss of trust in medical treatment in the long term.
Dr Darbyshire gave evidence that Beverley had, at some time in the past, had blood taken for blood tests at the Royal Children’s Hospital. She said she believed this occurred with the assistance of nitrous oxide and perhaps some other form of sedative administered by anaesthetists.
Dr Darbyshire said that, just like the Royal Children’s Hospital, the Royal Women’s Hospital had the expertise and anaesthetic services available to take blood samples from Beverley appropriately, and it was for this very reason that the secure welfare practitioners referred Beverley to the hospital for this to occur. Dr Darbyshire was supportive of obstetric treating doctors’ request for authority to restrain Beverley for the blood tests to occur. Dr Darbyshire was not aware of any disagreement amongst the secure welfare practitioners about treatment for Beverley.
Given the strength of Beverley’s aversion to needles, I was concerned that restraining Beverley to take blood from her may harm her psychologically. I was especially concerned that the application of restraints on Beverley through a court process conducted without notice to her could harm her. At the very least, she should have an opportunity to be heard before any such restraint is ordered, given that the blood tests are not needed to preserve her from an imminent risk to her life or health.
On the basis of the evidence adduced at the hearing last Friday:
(a) I was satisfied that it is in Beverley’s best interests to give blood samples enabling the blood tests recommended by her obstetric treating doctors to occur.
(b) However, the evidence placed before me did not demonstrate that the blood tests were sufficiently urgent to justify restraining Beverley and taking a blood sample against her will.
(c) For that reason, the evidence did not rise to the level necessary for me to immediately order any form of restraint in the exercise of the Court’s parens patriae jurisdiction.
Conclusion and Orders
For the above reasons, at the hearing on Friday I declined to grant any order authorising restraint of Beverley.
The Secretary reserved her right to press for all the orders sought in her originating motion at a future hearing, and sought a further hearing in the near future.
Earlier in the hearing I sought clarification as to whether the Secretary was applying for temporary or conditional authorisation of restraint in the event that Beverley goes into labour before the next hearing. Counsel indicated that the Secretary regarded this as unnecessary, on the basis that treatment could be provided in any event during a medical emergency. During Dr Kane’s evidence, counsel for the Secretary asked him his view about whether consent was needed to administer medical treatment in an emergency, under the MTPD Act. Dr Kane’s view was that emergency treatment could be provided without consent.[38] This issue was not fully ventilated and I reached no concluded view on it.
[38]He also noted that some of the treatment recommended for Beverley, such as the insertion of an IUD, could not be regarded as emergency treatment.
At the end of the hearing on Friday, I referred to the consultation with Beverley Mr Myles was intending to arrange in the near future. I indicated that I expected Mr Myles to convey to Beverley my view that the blood tests are in her best interests. I said that, as time progresses, the argument for some form of restraint to facilitate the blood tests in Beverley’s best interests will become more persuasive. I said that the best outcome would be that Beverley might see her way clear to agreeing to some form of sedation or other restraint, in a manner and place of her choosing, to allow her blood to be taken.
I adjourned the originating motion to a date to be fixed not before 10 December 2024, noting the Secretary’s preference for a further hearing this week.