Z v St Vincent's Hospital Sydney Ltd

[2024] NSWSC 1270

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Z v St Vincent’s Hospital Sydney Ltd [2024] NSWSC 1270

Hearing dates:

9 October 2024

Decision date:

10 October 2024

Jurisdiction:

Equity - Duty List

Before:

Hammerschlag CJ in Eq

Decision:

I order that the interim injunction granted by Hmelnitsky J on 3 October 2024 is dissolved, and make the following orders in its place:

(1) The first and second plaintiffs, Baoshan Zhang and Runhua Ding, be appointed as guardians of Xinyi Zhang with the power and authority to make decisions as to the medical treatment of Xinyi Zhang, including whether she should be transferred to the care of Dr Zhuoqian Zhu, Associate Chief Physician, Department of Neurosurgery, at Huashan Hospital, Shanghai;

(2) Up to and including 17 October 2024, the first and second plaintiffs are entitled to remove Xinyi Zhang from the care of the defendant and transfer her, whilst intubated, to mainland China for further medical treatment;

(3) Up to and including 17 October 2024 or such earlier date as she may be removed as contemplated in order (2), Xinyi Zhang be provided with medical treatment towards preserving her life, including intubation but not including resuscitation; and

(4) The defendant’s responsibility for the care of Xinyi Zhang terminates upon her release into the custody of her parents under these orders.

Catchwords:

EQUITY – Parens patriae jurisdiction – Orders for medical life support to continue for a short time to enable the parents of an injured young woman to attempt to facilitate her transfer to a hospital in China

Category:

Principal judgment

Parties:

Baoshan Zhang (First Plaintiff)
Runhua Ding (Second Plaintiff)
Zihao Qin (Third Plaintiff)
St Vincent’s Hospital Sydney Ltd (Defendant)

Representation:

Counsel:
D Allen (Plaintiffs)
L Toose with RH Hood (Defendant)

Solicitors:
Du & Associates Lawyers (Plaintiffs)

File Number(s):

2024/00366174

Publication restriction:

Nil

EX TEMPORE JUDGMENT

1. This tragic case concerns a newly married young woman, Xinyi Zhang (Xinyi), also known as Juno, who was involved in a serious motor accident on 24 September 2024 in which she sustained major brain damage. She is in a coma on life support at St Vincent’s Hospital, Sydney.

2. Her parents are the first and second plaintiffs. Her husband is the third plaintiff. Her parents live in China. On hearing of the accident, they obtained a visa and came to this country.

3. In the opinion of Dr Jacob Fairhall, a neurosurgeon at St Vincent’s, the combination of Xinyi’s neurological examination and her radiological findings indicate that she has a catastrophic brain injury from which she will not recover. There is no countervailing medical evidence.

4. Xinyi’s parents wish to make arrangements for her to be medically transported to a hospital in Shanghai, believing that she might receive treatment there which may have some beneficial outcome.

5. They say that there have been some signs (such as opening her eyes) which give them optimism about Xinyi’s condition. However, in the opinion of Dr Stephen Morgan, an intensive care specialist at St Vincent’s, while she may have some natural reflexes and she has intact brain stem function, the continued presence of such reflexes does not change the assessment of the injury to her brain.

6. By Summons filed with leave on 3 October 2024, the plaintiffs moved the Court in its parens patriae jurisdiction for an interlocutory injunction that medical treatment towards preserving her life, including resuscitation, be provided and that St Vincent’s be restrained from ceasing medical care, including ceasing to provide life support. Hmelnitsky J granted interlocutory relief and made the Summons returnable before the duty judge (myself) on 8 October 2024. I determined that the matter should go to final hearing on 9 October 2024. This means that the orders I will make are final orders and they will not be changeable other than on appeal.

7. On 9 October 2024, the plaintiffs filed an Amended Summons by which they seek as final relief that the parents be appointed her guardians with power and authority to make decisions as to the appropriate medical treatment, including whether she should be transferred to the care of Dr Zhuoqian Zhu, the Associate Chief Physician, Department of Neurosurgery, at Huashan Hospital, Shanghai, together with orders that they are entitled to remove Xinyi from the care of St Vincent’s whilst intubated to mainland China, and an injunction that she be provided with medical treatment directed towards preserving her life, including resuscitation and mechanical ventilation, until she has been removed from St Vincent’s care.

8. The evidence discloses that her parents have made contact with JetBay, a global charter booking service, to book a medical evacuation flight. It appears, on the face of things, that transport with the necessary care facilities can be arranged, but at a cost exceeding $430,000. They say that they are trying to arrange the necessary funds and anticipate that they will be able to do it in approximately seven days. Family members in China are said to be willing to lend money. The evidence is somewhat thin as to the resources that will be available to raise such a significant sum.

9. In an appropriately restrained fashion, St Vincent’s opposed the relief on the footing that, however unfortunate it may be, continuing life support is futile and that, in general, medical practitioners will not be ordered by a Court to provide treatment where it is inconsistent with their medical opinion and not in accordance with what they see to be their ethical responsibilities and applicable codes of conduct. I give due weight to this.

10. Despite the grim medical predictions, some degree of credit must be given to the hopes of her parents and family for some recovery. But this needs to be balanced with the practical availability in the short term of them achieving an evacuation and medical opinion.

11. In the light of the exceptional circumstances of this case, I have come to the conclusion that life support (by way of intubation) should be maintained for eight days, but no more, to give them an opportunity to achieve this. I also do not consider that St Vincent’s should be ordered, contrary to what it considered is the practitioners’ ethical responsibilities, to provide resuscitation (as opposed to maintaining life support without resuscitation) during this period.

12. I order that the interim injunction granted by Hmelnitsky J on 3 October 2024 is dissolved and make the following orders in its place:

1. the first and second plaintiffs, Baoshan Zhang and Runhua Ding, be appointed as guardians of Xinyi Zhang with the power and authority to make decisions as to the medical treatment of Xinyi Zhang, including whether she should be transferred to the care of Dr Zhuoqian Zhu, Associate Chief Physician, Department of Neurosurgery, at Huashan Hospital, Shanghai;

2. up to and including 17 October 2024, the first and second plaintiffs are entitled to remove Xinyi Zhang from the care of the defendant and transfer her, whilst intubated, to mainland China for further medical treatment;

3. up to and including 17 October 2024 or such earlier date as she may be removed as contemplated in order (2), Xinyi Zhang be provided with medical treatment towards preserving her life, including intubation but not including resuscitation; and

4. the defendant’s responsibility for the care of Xinyi Zhang terminates upon her release into the custody of her parents under these orders.

13. I make no order as to costs.

**********

Amendments

10 October 2024 - Updated counsel

Decision last updated: 10 October 2024