Medium Neutral Citation: X v The Sydney Children's Hospitals Network [2013] NSWCA 320
Hearing dates: 17 September 2013
Decision date: 27 September 2013
Before: Beazley P at [1];
Basten JA at [9];
Tobias AJA at [80]
Decision:
(1) Grant leave to the applicants to appeal from the orders of Gzell J made in the Equity Division on 28 March 2013.
(2) Direct that the applicants file a notice of appeal in the form contained in the white folder within 14 days.
(3) Vary order 1 made in the Equity Division by deleting the words "until further order" and replacing them with "until 18 January 2014 or earlier order".
(4) Otherwise dismiss the appeal.
(5) No order as to the costs of the proceedings in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
COURTS - jurisdiction - parens patriae - power of court to consent to medical treatment - whether power extends to a mature minor capable of consenting to medical treatment - relevant considerations - consent to administration of blood refused by minor on religious grounds - family subscribed to tenets of Jehovah's Witnesses

TORTS - trespass to person - medical treatment without consent - power of court to override refusal of consent by minor
STATUTORY INTERPRETATION - whether provision giving effect to consent by minor constituted 'code' - whether court retained power to override refusal of consent - Children and Young Persons (Care and Protection) Act 1998 (NSW), s 174
Legislation Cited: Child and Family Services Act (Manitoba), s 25
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 6, 174
Convention relating to the Status of Refugees (1951), Art 1A(2)
Crimes Act 1900 (NSW), ss 31A, 31C, 574B
Family Law Reform Act 1969 (UK), s 8
International Covenant on Civil and Political Rights, Art 18
Medical Consent of Minors Act 1976 (New Brunswick), ss 2, 3
Minors (Property and Contracts) Act 1970 (NSW), ss 8, 9, 14, 49
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Universal Declaration of Human Rights, Art 18
Cases Cited: AC v Manitoba (Director of Child and Family Services) 2000 SCC 30; [2009] 2 SCR 181
Cruzan v Missouri Department of Health 497 US 261 (1989)
Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112
In re O'Hara [1900] 2 IR 232 at 239-240
In re T (Adult: Refusal of Treatment) [1993] Fam 95 at 115
J v C [1970] AC 668
Johnson v Director-General of Social Welfare (Vic) [1976] HCA 19; 135 CLR 92
JSC v Wren (1986) 76 AR 115…

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.

Continue reading X v The Sydney Children's Hospitals Network

Details

AGLC: X v The Sydney Children's Hospitals Network [2013] NSWCA 320
Case: [2013] NSWCA 320
Decision Date: 27 September 2013

CaseChat Overview and Summary

The case of X v The Sydney Children's Hospitals Network concerned an application by The Sydney Children's Hospitals Network (the Network) to the Supreme Court of New South Wales for consent to administer blood transfusions to a minor, X, who was a patient. X, a mature minor, was a Jehovah's Witness and had refused consent to blood transfusions on religious grounds. The Network sought to override X's refusal, arguing it was in X's best interests.

The primary legal issues before the Court of Appeal were whether the Supreme Court, exercising its parens patriae jurisdiction, possessed the power to consent to medical treatment for a mature minor who was capable of consenting to such treatment, and whether this power extended to overriding a minor's refusal of treatment on religious grounds. The Court also considered whether section 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) constituted a code that excluded the Court's inherent jurisdiction in such matters.

The Court of Appeal affirmed the principles governing the treatment of mature minors, acknowledging their capacity to make informed decisions about their medical care. It was held that while the court's parens patriae jurisdiction allows it to intervene in the best interests of a child, this power is not absolute and must be exercised with caution, particularly when a mature minor has expressed a clear and informed refusal of treatment. The Court found that section 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) did not extinguish the court's inherent jurisdiction to consent to treatment in exceptional circumstances, but it did not grant the court a broad power to override the refusal of a competent minor. The appeal was otherwise dismissed, with the Court varying an existing order to limit its duration.

Orders

Orders of the court

(1) Grant leave to the applicants to appeal from the orders of Gzell J made in the Equity Division on 28 March 2013.

(2) Direct that the applicants file a notice of appeal in the form contained in the white folder within 14 days.

(3) Vary order 1 made in the Equity Division by deleting the words "until further order" and replacing them with "until 18 January 2014 or earlier order".

(4) Otherwise dismiss the appeal.

(5) No order as to the costs of the proceedings in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

X v The Sydney Children's Hospitals Network [2013] NSWCA 320

Most Recent Citation

Mercy Hospitals Victoria v D1 [2018] VSC 519

Cases Citing This Decision

Re KT and JC, Protected Persons [2025] NSWSC 306
Citation 1

…76) 135 CLR 92 at 97 and 100; Re Eve [1986] 2 SCR 388 at 426; 31 DLR (4th) 1 at 28; X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 at 301 [26]-[27]. … (25) The parens patriae jurisdiction is generally reserved for dealing with uncontemplated, or exceptional, situations where it appears necessary for t…
Applicant or 7/2025 v Medical Board of Australia (Occupational Discipline) [2025] ACAT 18
Citation 2 (Para 17)

…re clear words of necessary intendment. [9] Law Society of New South Wales v Weaver [1974] 1 NSWLR 271 [10] X v Sydney Children's Hospitals Network [2013] NSWCA 320 at [50]…
H v RJ [2024] NSWSC 1404
Citation 3 (Para 14)

…dealing with the exercise of the parens patriae jurisdiction, in circumstances such as these, including X v the Sydney Children’s Hospital Network (2013) 85 NSWLR 294 and more recently H v AC [2024] NSWSC 40 (Meek J). It is not necessary to canvas them.…
Hunter New England Local Health District v C [2024] NSWSC 929
Citation 4 (Para 19)

…aintiff in circumstances such as the present is well established. The decision of the Court of Appeal in X v The Sydney Children’s Hospital Network (2013) 85 NSWLR 294 is the leading example. The scope of the power and the basis on which it is exercised, in the interests of the child who lacks legal capacity, emerge c…
H v OL [2024] NSWSC 271
Citation 5

…est interests of the child. I respectfully adopt the summary of the jurisdiction set out by Beazley P in X v The Sydney Children's Hospital Network [2013] NSWCA 320; (2013) 85 NSWLR 294: “2. The jurisdiction invoked in this matter was the parens patriae jurisdiction of the Court. As Basten JA has stated, the origin…
Re Paul (No 2) [2024] NSWSC 106
Citation 6

…in the Children’s Court and, on appeal, the District Court. [133] As the contrasting case of X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 at 311 [75]-[78] demonstrates, each case must ultimately depend on its own facts. [134] A common (but not necessary) factor in a decision to award costs against…
H v AC [2024] NSWSC 40
Citation 7 (Para 46)

…been considered by the High Court (e.g. Marion’s Case ), the Court of Appeal (see X v The Sydney Children's Hospitals Network (2013) 85 NSWLR 294; [2013] NSWCA 320 ( Re X - CA )) and first instance judges of this Court (e.g. Lindsay J in GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 at [23…
Carr v Attorney-General (Cth) [2023] FCA 1500
Citation 8 (Para 13)

…: see for example, IL v The Queen [2017] HCA 27; (2017) 262 CLR 268 at [79], [111]; X v The Sydney Children’s Hospitals Network [2013] NSWCA 320; (2013) 85 NSWLR 294 at [59]; H Ltd v J [2010] SASC 176; (2010) 107 SASR 352 at [56]-[57].…
Hunter New England Local Health District v JI [2023] NSWSC 1245
Citation 9 (Para 6)

…v X (2013) 49 Fam LR 330; [2013] NSWSC 368 at [10]–[12]; and X v Sydney Children’s Hospitals Network (2013) 85 NSWLR 294; (2013) 304 ALR 517; [2013] NSWCA 320 at [2].…
As by her tutor SS v NSW Public Guardian (No 2) [2022] NSWSC 708
Citation 10

…ed in the Children’s Court and, on appeal, the District Court. [133] As the contrasting case of X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 at 311 [75]-[78] demonstrates, each case must ultimately depend on its own facts. [134] A common (but not necessary) factor in a decision to award costs agains…
Re Marlie [2021] NSWSC 973
Citation 11 (Para 3)

…ion of the authorisation to carry out treatment, was upheld by the Court of Appeal in X v Sydney Children’s Hospital Network (2013) 85 NSWLR 294; [2013] NSWCA 320, and in other decisions, such as Royal Alexandra Hospital for Children v Joseph [2005] NSWSC 422 at [13] and Re Bernard [2009] NSWSC 11 at [4].…
Re Imogen (No 6) [2020] FamCA 761
Citation 12

…munity Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) X and Others v The Sydney Children’s Hospital Network (2013) 85 NSWLR 294; [2013] NSWCA 320 American Psychiatric Association, “Gender Dysphoria” in Diagnostic and Statistical Manual of Mental Disorders: DSM-5, (American Psychiatric Publishing, 5 th…
Re Ryder [2020] NSWSC 895
Citation 13 (Para 25)

…best interests of the child. I respectfully adopt the summary of the jurisdiction set out by Beazley P in X v The Sydney Children's Hospital Network [2013] NSWCA 320; (2013) 85 NSWLR 294:…
Mercy Hospitals Victoria v D1 [2018] VSC 519
Citation 14 (Para 1)

…ce to the principles of the Jehovah’s Witness faith, the child and parent refused blood transfusion. [13](2004) 33 Fam LR 223 (‘ AS ’). [14](2013) 85 NSWLR 294 (‘ X ’).…
Sydney Children's Hospital Network, Re A [2018] NSWSC 1358
Citation 15 (Para 5)

…half 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 co…
Fletcher (an infant by her litigation guardian Rylands) v Northern Territory of Australia [2017] NTSC 62
Citation 16

…7, Secretary, Department of Health and Community Services v JWB and SMB ( Marion’s case) (1992) 175 CLR 218, X v Sydney Children's Hospital Network (2013) 85 NSWLR 294, referred to.…
Tinnock v Murrumbidgee Local Health District (No 6) [2017] NSWSC 1003
Citation 17 (Para 14)

…In X v The Sydney Children’s Hospital Network (2013) 85 NSWLR 294; [2013] NSWCA 320 at 298 [12], Basten JA said:…
Beavan v Industrial Relations Secretary (No 3) [2016] NSWIC 5
Citation 18

…event, in accordance with r 42.1, unless it appears to the Court that some other order should be made: X v The Sydney Children’s Hospitals Network [2013] NSWCA 320; (2013) 85 NSWLR 294 at [76] (per Basten J with whom Tobias AJA agreed).…
Re Application of Local Health District; Patient Fay [2016] NSWSC 624
Citation 19 (Para 24)

…2010] NSWCCA 242; 79 NSWLR 544 at 602-604; [357]-[360], Re JS [2014] NSWSC 302 at [6]-[9]. See also X v The Sydney Children’s Hospitals Network [2013] NSWCA 320.…
Chapman-Davis v State of New South Wales (No 2) [2015] NSWIC 13
Citation 20 (Para 29)

…Costs will not follow the event if it appears to the Court that some other order should be made: X v The Sydney Children’s Hospitals Network [2013] NSWCA 320; (2013) 85 NSWLR 294 at [76] (per Basten J with whom Tobias AJA agreed).…
Stephen Bell v Commissioner of Police [2015] NSWIC 11
Citation 21 (Para 125)

…event, in accordance with r 42.1, unless it appears to the Court that some other order should be made: X v The Sydney Children’s Hospitals Network [2013] NSWCA 320; (2013) 85 NSWLR 294 at [76] (per Basten J with whom Tobias AJA agreed).…
The Hospital v T [2015] QSC 185
Citation 22

…17, considered X and Ors v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294; [2013] NSWCA 320, considered COUNSEL: J E Farr for the applicant The respondents appeared in person SOLICITORS: Minter Ellison Lawyers for the applicant…
CAC v Secretary, Department of Family and Community Services (No 2) [2015] NSWSC 344
Citation 23 (Para 12)

…Services; Re Felicity [2012] NSWCA 272 at [43], Re Kerry (No 2 ) – Costs [2012] NSWCA 194 at [19] and X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 at 311 [78] the word “appropriate” was used as a touchstone, rather than “proper”, but no significance attaches to that difference.…
White v Johnston [2015] NSWCA 18
Citation 24 (Para 53)

…ing point is that consent is vital lest medical treatment be tortious and indeed criminal. As was said in X v The Sydney Children's Hospitals Network [2013] NSWCA 320 at [12] (Basten JA, Beazley P and Tobias AJA agreeing):…
CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855
Citation 25 (Para 12)

…at 426; 31 DRL (4th) 1 at 28; In re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552; X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 at 301 [26]-[27].…
High Court Bulletin [2014] HCAB 4
Citation 26

…work (Randwick and Westmead) (incorporating The Royal Alexandra Hospital for Children) (S203/2013) Supreme Court of New South Wales (Court of Appeal) [2013] NSWCA 320 Application Dismissed [2014] HCASL 97 20. Kelly The State of Western Australia (P39/2013) Supreme Court of Western Australia (Court of Criminal Appea…
Re JS [2014] NSWSC 302
Citation 27 (Para 1)

…oncerns aiding and abetting the suicide or attempted suicide of another person. As stated by Basten JA in X v The Sydney Children's Hospitals Network [2013] NSWCA 320 at 59:…
“V V” v District Court of New South Wales [2013] NSWCA 469
Citation 28 (Para 1)

…urt's parens patriae jurisdiction the nature and scope of which were recently considered by this Court in X v The Sydney Children's Hospitals Network [2013] NSWCA 320.…

See all citing cases →

Cases Cited

The Sydney Children's Hospital Network v X [2013] NSWSC 368
Citation 1 (Para 1)

…On 28 March 2013 Gzell J made the orders sought by the Hospital: The Sydney Children's Hospital Network v X [2013] NSWSC 368. The young person and his parents have sought leave to appeal from that decision. For the reasons explained below, there should be a grant of leave to appeal, but the appeal should be dismiss…
Momcilovic v The Queen [2011] HCA 34
Citation 2 (Para 1)

…ially conflicting, principles of constitutional significance inherent in the common law, absent any written bill of rights: cf Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [42] (French CJ). Acknowledging that the jurisdiction may be varied by statute, there is nevertheless sound reason to doubt that any pa…
Minister for Health v AS [2004] WASC 286
Citation 3 (Para 1)

…is authority in the Supreme Court of Western Australia which is inconsistent with the limited role for which they contended. Minister for Health v AS [2004] WASC 286; 29 WAR 517 involved a proposed blood transfusion to a 15 year old Jehovah's Witness, identified as "L". L refused consent to a blood transfusion. Th…
Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15
Citation 4 (Para 1)

…odern application, it is an " essentially protective " jurisdiction: Secretary, Department of Health & Community Services v JWB & SMB (Marion's Case) [1992] HCA 15; 175 CLR 218 at 280 per Brennan J. In circumstances where the Court's concern is with the welfare of a child, the authorities are clear that whilst t…
Johnson v Director-General of Social Welfare (Vict) [1976] HCA 19
Citation 5 (Para 1)

…necessary intendment, do not limit or exclude the operation of the inherent jurisdiction. Thus in Johnson v Director-General of Social Welfare (Vic) [1976] HCA 19; 135 CLR 92 at 97, Barwick CJ (with the agreement of Stephen and Mason JJ) stated:…
[1986] 1 AC 112 [1986] 1 AC 112
Citation 6 (Para 1)

…decision-making competence. The argument derived from the judgment of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112. The critical question in that case was whether a girl under the age of 16 could give an effective consent to "advice and treatment including medical…
[1970] AC 668 [1970] AC 668
Citation 7 (Para 1)

…These remarks have been endorsed by the House of Lords in J v C [1970] AC 668 at 695, 706 and 722 and by Brennan J in Marion's Case at 280.…
(1994) 116 DLR (4th) 477 (1994) 116 DLR (4th) 477
Citation 8 (Para 1)

…a decision of the New Brunswick Court of Appeal, upon which the applicants sought to place significant weight, namely Walker v Region 2 Hospital Corp (1994) 116 DLR (4th) 477. Joshua Walker, at the age of 15 years and 9 months, was diagnosed with acute myeloid leukaemia. The treatment was likely to require blood transfusio…
[2009] 2 SCR 181 [2009] 2 SCR 181
Citation 9 (Para 1)

…Finally, it is helpful to refer to the judgment of the Supreme Court of Canada in AC v Manitoba (Director of Child and Family Services) 2009 SCC 30; [2009] 2 SCR 181. The principal judgment was delivered by Abella J (for Le Bel, Deschamps, Charron JJ and herself). The applicant, AC, was 14 years and 10 months when…
497 US 261 497 US 261
Citation 10 (Para 1)

…t 801 P 2d 617 (1990) at 626, Steffen J of the Nevada Supreme Court disagreeing with statements of Scalia J in Cruzan v Missouri Department of Health 497 US 261 (1989) at 296-297.…
Malette v Shulman (1990) 67 DLR (4th) 321
Citation 11 (Para 1)

…constitutional cases in the USA and other countries with constitutional provisions similar to the US Bill of Rights, are instructive. For example, in Malette v Shulman (1990) 72 OR (2d) 417, the Ontario Court of Appeal considered the case of an adult Jehovah's Witness who arrived at hospital unconscious, but with a signed…

Legislation Cited

Minors (Property and Contracts) Act 1970 (NSW) 14, 49, 8, 9
5 mentions (from Para 1)
Children and Young Persons (Care and Protection) Act 1998 (NSW) 174, 3, 6
4 mentions (from Para 1)
Crimes Act 1900 (ACT) 31A, 31A), 31C, 574B
4 mentions (from Para 1)
Family Law Reform Act 1969 c.46 8, 8(1)
3 mentions (from Para 1)
H v The Queen 8, 8(1)
3 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW) 42.1
1 mention (from Para 1)

Medium Neutral Citation:	X v The Sydney Children's Hospitals Network [2013] NSWCA 320
Hearing dates:	17 September 2013
Decision date:	27 September 2013
Before:	Beazley P at [1]; Basten JA at [9]; Tobias AJA at [80]
Decision:	(1) Grant leave to the applicants to appeal from the orders of Gzell J made in the Equity Division on 28 March 2013. (2) Direct that the applicants file a notice of appeal in the form contained in the white folder within 14 days. (3) Vary order 1 made in the Equity Division by deleting the words "until further order" and replacing them with "until 18 January 2014 or earlier order". (4) Otherwise dismiss the appeal. (5) No order as to the costs of the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COURTS - jurisdiction - parens patriae - power of court to consent to medical treatment - whether power extends to a mature minor capable of consenting to medical treatment - relevant considerations - consent to administration of blood refused by minor on religious grounds - family subscribed to tenets of Jehovah's Witnesses TORTS - trespass to person - medical treatment without consent - power of court to override refusal of consent by minor STATUTORY INTERPRETATION - whether provision giving effect to consent by minor constituted 'code' - whether court retained power to override refusal of consent - Children and Young Persons (Care and Protection) Act 1998 (NSW), s 174
Legislation Cited:	Child and Family Services Act (Manitoba), s 25 Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 6, 174 Convention relating to the Status of Refugees (1951), Art 1A(2) Crimes Act 1900 (NSW), ss 31A, 31C, 574B Family Law Reform Act 1969 (UK), s 8 International Covenant on Civil and Political Rights, Art 18 Medical Consent of Minors Act 1976 (New Brunswick), ss 2, 3 Minors (Property and Contracts) Act 1970 (NSW), ss 8, 9, 14, 49 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Universal Declaration of Human Rights, Art 18
Cases Cited:	AC v Manitoba (Director of Child and Family Services) 2000 SCC 30; [2009] 2 SCR 181 Cruzan v Missouri Department of Health 497 US 261 (1989) Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 In re O'Hara [1900] 2 IR 232 at 239-240 In re T (Adult: Refusal of Treatment) [1993] Fam 95 at 115 J v C [1970] AC 668 Johnson v Director-General of Social Welfare (Vic) [1976] HCA 19; 135 CLR 92 JSC v Wren (1986) 76 AR 115…