Secretary DFFH v Hage (a pseudonym) - [2024] VSC 764

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 She has withdrawn her arm and become distressed when medical staff have attempted to take blood, amounting to a withdrawal of consent to the taking of a blood sample.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…

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.

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Details

Case: [2024] VSC 764
Decision Date: 10 December 2024

CaseChat Overview and Summary

In the matter of Secretary DFFH v Hage, the Court was tasked with considering the application of the Secretary of the Department of Family and Human Services for orders that would allow for the use of restraints on a pregnant teenage child, referred to as "Hage," when all other strategies had proven ineffective in the opinion of the treating medical team. The application also sought the authority for the Secretary to decide whether to use restraint in the event of a disagreement between the treating medical team. The Court had to weigh these applications against the child's best interests, taking into account relevant legislation, including the Children, Youth and Families Act 2005, the Medical Treatment Planning and Decisions Act 2016, and the Charter of Human Rights and Responsibilities Act 2006. Additionally, the Court considered the open justice principle and the need for pseudonyms and suppression orders under the Open Courts Act 2013.

The legal issues before the Court included the extent of the Secretary's parens patriae jurisdiction to authorise the use of restraints on a child and the balance between the child's autonomy and her best interests. The Court also had to consider the appropriate process for making such decisions, including whether a litigation guardian was necessary. The Court examined the statutory framework and the implications of the Charter of Human Rights and Responsibilities Act 2006 on the child's rights and the decision-making process.

In determining the application, the Court recognised the importance of the child's rights and autonomy while also considering her best interests. The Court found that the Secretary had the authority to apply for the necessary orders under the statutory framework provided, but it also emphasised the importance of the child's voice in the decision-making process. The Court granted the application for pseudonyms and suppression orders to protect the child's identity and privacy. The Court also dispensed with the requirement for a litigation guardian, finding that the child's interests were adequately represented by her legal counsel.

The final orders included the authorisation for the use of restraints under specified conditions, the appointment of a panel to advise on the use of restraints, and the continuation of pseudonyms and suppression orders. The Court emphasised the need for ongoing review and the importance of the child's views in any future decisions regarding her care and treatment.

Orders