Sydney Children's Hospital Network, Re A

[2018] NSWSC 1358

Supreme Court

New South Wales

Medium Neutral Citation:	Sydney Children's Hospital Network, Re A [2018] NSWSC 1358
Hearing dates:	10 August 2018
Date of orders:	10 August 2018
Decision date:	10 August 2018
Jurisdiction:	Equity - Duty List
Before:	Rein J
Decision:	See [9]-[10]
Catchwords:	JURISDICTION – Parens patriae – Power of the Court to permit medical treatment of a minor diagnosed with kidney cancer – Where proposed treatment could well require blood transfusions during the course of surgery – Where parents of the child subscribe to tenets of Jehovah’s Witnesses religion and oppose the use of blood transfusions during surgery – Orders made in accordance with those sought by the Applicant.
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Minors (Property and Contracts) Act 1970 (NSW)
Cases Cited:	Sydney Children’s Hospital Network, The Application of [2018] NSWSC 1259 X v The Sydney Children's Hospitals Network [2013] NSWCA 320
Category:	Principal judgment
Parties:	Sydney Children's Hospital Network (Applicant)
Representation:	Counsel: S. Woods (Applicant)   Solicitors: NSW Ministry of Health (Applicant)
File Number(s):	2018/00242435
Publication restriction:	Nil

Ex tempore Judgment

1. These proceedings arise in relation to a six-year-old child, whose name has been anonymised to “A” and who is suffering from kidney cancer of a type known as Wilms tumour with the potential spread of that cancer to other vessels and possibly organs. The child has had a period of chemotherapy at the hospital in order to reduce the size of the tumour. The hospital is hoping that by early next week the patient will, as a result of the chemotherapy, be in a position to undergo surgery for removal of the affected part and examination of possible spread of the cancer.

2. The parents of the child, whose names have been anonymised as “P1” and “P2”, have made clear their position in relation to the proposed treatment and that is that, as Jehovah’s Witnesses, they strongly oppose the use of blood transfusions during surgery.

3. The doctors who are involved in the treatment of the child are well aware of the parties’ position. They are not prepared to undertake surgery without the sure knowledge that they will be able to use blood transfusions, should that become necessary in the course of the operation and surgical examination which they propose to undertake.

4. P1 and P2 have been served with notice of the Summons in these proceedings which has been issued by the Applicant on behalf of the hospital (“H”) and have, through correspondence, indicated their continued opposition to the use of blood transfusions but have also indicated that they do not wish to be heard in relation to this Summons and that they will not be attending today. The correspondence is annexed to the affidavit of Ms Elise McHugh sworn today.

5. This application is brought on the basis of this Court’s parens patriae jurisdiction which is a jurisdiction permitting the Court to make orders to protect the health and welfare of minors, even in circumstances where the parents of that child do not consent to treatment which is necessary for the health and wellbeing of a child. Mr S. Woods, of Counsel, who appears on behalf of the Applicant, has drawn my attention to a relatively recent decision of the Court of Appeal in X v The Sydney Children's Hospitals Network [2013] NSWCA 320. Although that case is one dealing with the question of consent or lack of consent of a teenage boy of 17 years of age in respect of which different considerations can apply, the case nevertheless provides, in the judgment of Basten JA (with whom Beazley P and Tobias AJA agreed), guidance as to the exercise of the parens patriae jurisdiction of this Court: see, in particular, at [24]-[31].

6. In that case reference is made to s 49 of the Minors (Property and Contracts) Act 1970 (NSW) and to s 174(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), which provides that a medical practitioner may carry out emergency medical treatment on a child or young person without the consent of the child or young person or a parent of the child or young person:

“… if the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life or to prevent serious damage to his or her health.”

7. In this case it is not so much the treatment which is the problem, because the parents fully understand that treatment is required, but, rather, it is the mode of treatment and, in particular, the need for blood transfusions that is the point of contention.

8. Parker J had a similar case a few weeks ago also involving parents who were Jehovah’s Witnesses (see Sydney Children’s Hospital Network, The Application of [2018] NSWSC 1259), but in that case the operation was projected to be required on the birth of the child and the relevant hospital was seeking the authority to administer blood transfusions in the future should that become necessary. His Honour granted the hospital the authority it sought.

9. In my view it is clear that the doctors who are involved in this matter must be able to use blood or blood products in connection with the operation, or operations, which they assess as being required to be undertaken and to do so without any concern that such use will be impermissible at law. The welfare of the child being paramount, it is essential that they be able to:

1. perform the surgery; and

2. as a necessary adjunct to that surgery, have the ability to use such blood or blood products as they believe is necessary for the care and treatment of the child.

10. Accordingly, I make an order in accordance with the Short Minutes of Order which I shall initial and date with today’s date. That order is to be taken out forthwith.

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Decision last updated: 20 December 2018