Applications to the parens patriae jurisdiction seeking the authorisation of treatment for children: are they necessary?

The appropriate medical treatment for a child who is acutely unwell or receiving treatment for an underlying illness will, ordinarily, not be in dispute as between the child’s treating doctors and those with parental responsibility for the child. However, the courts are not unfamiliar with requests for their intervention in circumstances where a child’s parents refuse medical treatment on the basis of personal beliefs or religious reasons and against medical advice.¹ Where applications of this sort are made to a court in its parens patriae jurisdiction, the court will typically authorise the treatment in exercising its discretion on the basis of a 'best interests' assessment.²

This article was originally published in the Lexis Nexis Health Law Bulletin Volume 32 No 8.

In the recent decision of Hunter New England Local Health District v C³ the Supreme Court of NSW, (the Court), revisited these same considerations and the scope of its powers in its parens patriae jurisdiction, with reference to the leading common law principles.

The Court did ultimately make orders authorising the treatment sought. However, the decision is of particular interest for its discussion of the ancillary issues raised at the hearing, not previously considered by a court.⁴ Namely, the Court considered the operation of the Children and Young Persons (Care and Protection) Act 1998 (NSW) as to whether, in light of the legislative provisions for emergency medical treatment, an application seeking authorisation of treatment in these types of cases is required at all.

The legal landscape

The Supreme Court in all Australian states and territories (Supreme Court), in its parents patriae jurisdiction, has wide-ranging powers to make decisions in the best interests of those persons, including children, under a legal incapacity. In its modern application, the parens patriae has been termed an 'essentially protective' jurisdiction⁵ that should be exercised cautiously.⁶

Accordingly, while decisions concerning a child’s treatment will ordinarily be made by those with parental responsibility for the child, when hospitals encounter parental refusal of medical treatment which is considered necessary, a Supreme Court, in its parens patriae jurisdiction, may be asked to determine whether the treatment should be authorised.⁷

The Family Court of Australia (Family Court), is also able to determine these matters when exercising its welfare jurisdiction under the Family Law Act 1975 (Cth). Both the Supreme and Family Courts are guided by the same determinative question of what is in the 'best interests' of the child.⁸

Supreme Courts in Australia have determined a number of cases, ordinarily brought by a hospital or health service, which seek orders that medical treatment be authorised in the context of parental refusal on grounds of religious beliefs.⁹ These cases demonstrate that factors relevant to a court’s determination of what is in a child’s 'best interests' include the prospects of treatment curing or improving the child’s health, medical opinion of treating doctors, and the beliefs and wishes of the child’s parents (as well as of the child if they are old enough to express their views).¹⁰

In some Australian jurisdictions, legislation specifically provides for the authorisation of blood transfusions and other medical treatment of children which is required in the face of parental refusal to consent to that procedure.¹¹ However, these provisions typically require that one or more doctors consider that the procedure is necessary to prevent the child from dying.¹²

In the recent decision of Hunter New England Local Health District v C, the Court gave consideration to the relevant common law and legislative framework, including whether the clinical circumstances warranting the provision of treatment in the absence of parental consent required an 'emergency' for the NSW legislative provision to be relied upon.

The decision: Hunter New England Local Health District v C

The proceedings concerned a 12-year-old boy, C, who was imminently about to receive surgery for a serious fracture to his leg.¹³ The Hunter New England Local Health District, responsible for the hospital in which C was to have surgery, (the Local Health District), had brought the proceedings urgently, seeking the Court’s authorisation to administer blood transfusions to C if required during the surgery, in circumstances where C’s parents had consented for the surgery but refused consent for the use of blood transfusions on religious grounds.

The application was heard hours before the surgery was due to take place, and although the Court ultimately ordered that the hospital be authorised to provide transfusions, if necessary, a number of legal matters were considered subsequently at a later hearing.

Background to the application

C had sustained a compound fracture to his lower left leg and was airlifted to the hospital. He had already undergone two surgeries to clean out and flush his wound. A decision was made that C required a further surgery involving orthopaedic surgeons and plastic and reconstructive surgeons to collaboratively repair the damage to his leg.¹⁴

The surgery was discussed with C’s parents, and it was booked that day (a Friday) for the operating list on the coming Monday. During the discussions, C’s parents were informed of the possible need for a blood transfusion during the surgery. They were informed that, although transfusions were 'unlikely', should they be required and not be administered, there became a possibility that C would either lose his leg or die.¹⁵ C’s parents consented to the surgery but not the blood transfusions. Accordingly, the Local Health District made an application for authorisation of the transfusions, which was ultimately brought to the Duty Judge’s attention just 2 hours before the surgery was scheduled to begin.¹⁶

The law applied

The Court considered its powers in its parens patriae jurisdiction to make orders of the type sought by the Local Heath District and in doing so relied on the authorities established in X v The Sydney Children’s Hospital Network¹⁷ (X).

That decision set out the scope of the jurisdiction in detail. In particular, the reasons of Beazley P, which were noted to have been consistently adopted by subsequent courts, such that the judgment is generally considered the leading decision for cases involving children.¹⁸

In the decision of X, the NSW Court of Appeal explained the scope of the parens patriae jurisdiction as follows, with reference to the established principles:

In the decision of X, the matter was complicated by the evidence of the child X, who was only 4 months away from turning 18. He had provided a cogent statement to the Court as to why he continued to refuse consent to a blood transfusion, on the basis of his personal relationship with God as a Jehovah’s Witness.²⁰

Those features were not present in the case of C, as it was determined that C (who was much younger) had not attained a sufficient level of maturity to form his own independent view of the issues.²¹ Instead, the Court considered affidavits from C’s parents which detailed that, although they agreed that the surgery was necessary, and in fact that they were 'eager' for C to receive the surgery without delay, they could not consent for any transfusion of blood products on the grounds that such a procedure contravened their sincerely held religious convictions as Jehovah’s Witnesses, namely, God’s command to 'abstain from blood'.²²

The Court also considered evidence from the treating surgeon who detailed the necessity of the treatment, noting most significantly that there were no 'smaller or less significant alternative treatment options which would have the same result'.²³ In addition, the surgeon noted that should the surgery not be performed imminently, then the risk for infection or amputation of the limb would become very high.²⁴

Finally, the Court observed that the treating staff at the hospital had been sensitive to the religious beliefs of C’s parents and had planned to take additional steps throughout his surgical procedure and treatment to minimise C’s blood loss.²⁵ The Court also noted that the parents seemed to accept that their wishes could be overridden by a medical practitioner’s judgment of the necessity of a blood transfusion should the situation arise.²⁶

In consideration of this evidence, in the context of the legal principles borne out in the case of X, and namely the religious convictions of the child’s parents in making its decision,²⁷ the Court ultimately found in favour of authorising the treatment. The Court noted that the weight afforded to a parent’s religious convictions will change from case to case, in the context of the prospects of success in authorising the treatment. It was explained:

The orders authorising the treatment were made and the surgery went ahead as scheduled. In the end, the blood transfusion was not required.²⁹

Children and Young Persons (Care and Protection) Act 1998 (NSW)

At the parties’ request, the Court convened for a later hearing after the orders were made and the surgery had occurred to determine whether, in view of the terms of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (CYPA), the authorisation order was required at all.³⁰ It was hoped that the Court’s consideration of the legislation and its application for 'foreseeable' medical treatment would assist parties’ in the future should the need be considered to make a similar application.³¹

The provisions of the CYPA permit the administration of medical treatment to a child without consent in certain emergency situations. The relevant section is in these terms:

• A medical practitioner may carry out 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,

The Local Health District submitted that any medical treatment which is 'foreseeable as a possibility' will automatically disqualify it from being considered 'urgent' for the purposes of s 174 of the CYPA.³³ In addition, the Local Health District argued that, as a matter of construction, the word 'emergency', as it appears in the heading of s 174 of the CYPA, means that the treatment contemplated by the legislation cannot be said to include that treatment which is foreseen.³⁴

In the case of C, the Local Health District submitted that the need for a blood transfusion was foreseen entirely, thereby precluding capture under the provisions of s 174 of the CYPA. In support of this argument, it relied on the case law which showed that recommended medical treatment should generally be provided before it becomes an emergency.³⁵ It was on these grounds that the Local Health District brought the application, in circumstances where there was uncertainty as to whether the legislation applied.³⁶

The Court ultimately rejected the proposition that the 'foreseeability' of the circumstances were relevant in the provision’s application.³⁷ It considered that the operative term of the legislation is the word 'urgent', and noted that 'foreseeability' and 'urgency' are not terms which are antonymous. The Court explained:

Accordingly, in determining whether s 174 of the CYPA will apply, the Court described the relevant test as:

With reference to parliamentary intention, the Court found that the legislation clearly contemplates the power given to treating practitioners to carry out treatment which otherwise might not have been possible due to a lack of prior consent, and that the section’s intention is to give those practitioners the ability to give whatever treatment they consider, in their medical judgment, to be in the patient’s best interests.⁴⁰ Finally, the Court noted:

Implications

The Court concluded by noting that the provisions of s 174 of the CYPA will apply to most, if not all cases akin to C in New South Wales.⁴² While noting that the existence of s 174 of the CYPA does not limit the Court’s powers to authorise medical treatment in its parens patriae jurisdiction, irrespective of the powers conferred by s 174 of the CYPA, the Court did seemingly implore applicants to take into consideration the legislation should they be considering making an application for the type of treatment sought in this case.⁴³

The Court did acknowledge the balancing exercise at play in determining whether or not to bring such an application. It noted the benefit to treating clinicians in being provided with absolute certainty that they are authorised to carry out the treatment, knowing that they can proceed without any concern that action could be taken against them for administering the treatment in question. On the other hand, the costs involved for all parties in the making of a parens patriae application, particularly where the parents will often feel duty-bound to contest the application, cannot be overlooked.⁴⁴

Additionally, the application may prove to be an unnecessary distraction, especially when (as in this case), it is sought on the basis of a contingency that does not eventuate.⁴⁵

The Court did provide some guidance in resolving this balancing exercise. It noted that, if the treatment is uncontroversial and involves a contingency which may or may not occur, an application may be unnecessary in New South Wales, and jurisdictions with analogous provisions,⁴⁶ and the treatment will likely be captured by s 174 of the CYPA. However, if the treatment is particularly contentious, and especially if such treatment is certain to be required, a parens patriae application may well be necessary.⁴⁷

The decision in C does not, however, provide any express guidance for jurisdictions with differently worded legislation. For example, in Queensland, the legislation only provides for blood transfusions rather than medical treatment generally, and requires that the transfusion is deemed necessary to 'preserve the life of the child' for the provision to be operative.⁴⁸ Given the ambiguity of such an assessment, hospitals will still likely seek out the authorisation of the courts in cases like this, where an assessment of the necessity of the blood transfusion in meeting this threshold is uncertain.

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¹ See, for example, Re R [2000] 2 Qd 328 (Re R); Re Bernard [2009] NSWSC 11; BC200900368 (Re Bernard); Hunter New England Local Health District v JI [2023] NSWSC 1245; BC202314977 (Hunter v JI).
² For a more detailed discussion on the 'best interests' test in cases involving the withholding and withdrawal of treatment in both adults and children, see M Dillon and S Pillay 'Life, death and the law: the courts’ role in withdrawing and withholding futile treatment' (2022) 30(8) HLB 156.
³ Hunter New England Local Health District v C [2024] NSWSC 929; BC202410342.
⁴ Above n 3, at [44].
⁵ Dept of Health and Community Services (NT) v JWB and SM (Marion’s case) (1992) 175 CLR 218; 106 ALR 385; [1992] HCA 15 at 280 per Brennan J.
⁶ X v The Sydney Children’s Hospital Network (2013) 85 NSWLR 294; 304 ALR 517; [2013] NSWCA 320; BC201313311 at [2].
⁷ Above n 2.
⁸ Above n 5; In re Marion (No 2) (1992) 17 Fam LR 336; (1994) FLC 92-448. See also: Family Law Act 1975 (Cth), s 67ZC.
⁹ See, for example, Re R, above n 1; Re Bernard, above n 1; Re Heather [2003] NSWSC 532; BC200303419; Re Director Clinical Services, Child & Adolescent Health Services v Kisko (2016) 312 FLR 319; [2016] FCWA 75; BC201651300; Hunter v JI, above n 1.
¹⁰ L Willmott, B White and N Bhatia 'When is it in a child’s best interests to withhold or withdraw life-sustaining treatment? An evolving Australian jurisprudence' (2018) 25(4) JLM 944 at 946–47.
¹¹ For a detailed discussion of the legislative framework governing parental refusal to specific life-saving treatment, including blood transfusions, see B White, F McDonald and L Willmott Health Law in Australia 3^rd Edn, Thomson Lawbook Co, 2018, ch 14.
¹² See, for example, Transplantation and Anatomy Act 1979 (Qld), s 20.
¹³ Above n 3, at [3] and [7].
¹⁴ Above n 3, at [11].
¹⁵ Above n 3, at [14].
¹⁶ Above n 3, at [8].
¹⁷ Above n 6, referred to in above n 3, at [19].
_¹⁸ Above n 3, at [9].
¹⁹ Above n 6, at [2]–[3] per Beazley P, citing In re O’Hara [1900] 2 IR 232 at [239]–[40].
²⁰ Above n 6, at [5].
²¹ Above n 3, at [19].
²² Above n 3, at [16].
²³ Above n 3, at [12].
²⁴ Above.
²⁵ Above n 3, at [15].
²⁶ Above n 3, at [47]–[48].
²⁷ Above n 3, at [21].
²⁸ Above n 3, at [22].
²⁹ Above n 3, at [3].
³⁰ Above n 3, at [24].
³¹ Above n 3, at [4].
³² Children and Young Persons (Care and Protection) Act 1998 (NSW), s 174.
³³ Above n 3, at [32]–[33].
³⁴ Above n 3, at [33].
³⁵ Above n 3, at [32].
³⁶ Above n 3, at [24].
⁷ Above n 3, at [34]–[35].
⁸ Above n 3, at [35].
⁹ Above n 3, at [36].
⁴⁰ Above n 3, at [38].
⁴¹ Above.
⁴² Above n 3, at [45].
⁴³ Above n 3, at [46].
⁴⁴ Above n 3, at [47].
⁴⁵ Above n 3, at [46].
⁶ Emergency Medical Operations Act (NT), s 3; Consent to Medical Treatment and Palliative Care Act 1995 (SA), s 13.
⁴⁷ Above n 3, at [48]–[49].
⁴⁸ Above n 12.