X & Ors v The Sydney Children's Hospitals Network (Randwick and Westmead) (Incorporating the Royal Alexandra Hospital for Children)

[2014] HCASL 97

X & ORS

v

THE SYDNEY CHILDREN'S HOSPITALS NETWORK (RANDWICK AND WESTMEAD) (INCORPORATING THE ROYAL ALEXANDRA HOSPITAL FOR CHILDREN)
[2014] HCASL 97
S203/2013

1. The first applicant was admitted to the respondent hospital network in January 2012 and was diagnosed with Hodgkin's disease.  In March 2013, the respondent applied for orders in the Equity Division of the Supreme Court of New South Wales seeking authorisation to administer a blood transfusion if the first applicant's treating medical practitioner believed it to be "necessary to prevent serious damage to [the applicant's] health".  The first applicant was born on 19 January 1996 and was, at the time, a minor.  The first applicant and his parents, the second and third applicants, refused to consent to any blood transfusion on the ground that it was prohibited by their faith.

2. The Supreme Court (Gzell J) determined that though there was evidence that the first applicant was a "mature child of high intelligence", this was not a case of Gillick competency[1], and ordered pursuant to the parens patriae jurisdiction of the Court that it was in the best interests of the first applicant to give the respondent authority to administer a blood transfusion if medically necessary.     

   [1]Where a minor is legally competent of making an informed decision.  See Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112.

3. The Court of Appeal of the Supreme Court of New South Wales (Beazley P, Basten JA and Tobias AJA) dismissed the applicants’ appeal.  The Court considered the intersection between Gillick competency, parens patriae jurisdiction and s 174 of the Children and Young Persons (Care and Protection Act) 1998 (NSW), and ultimately found that no appellable error was demonstrated in the primary judge’s exercise of the broad discretionary power vested in the court.

4. The applicants seek special leave to appeal against the decision of the Court of Appeal.  Although the matters articulated raise novel issues, the first applicant reached majority on 19 January 2014.  The application for special leave is moot. 

5. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application.  No order for costs was made by the primary judge or by the Court of Appeal and we consider that no order for costs should now be made.

V.M. Bell
13 May 2014 S.J. Gageler