NSW Supreme Court orders medical treatment for a child against wishes of the parents

15 April 2024

The NSW Supreme Court has ordered medical treatment for a 14-year-old girl diagnosed with leukemia under its parens patriae jurisdiction despite the refusal of her parents.

In issue

  • The primary issue was whether the Court could, under its parens patriae jurisdiction, grant a hospital’s request for it to provide medical treatment to a child diagnosed with leukemia where her parents refused to consent to the provision of treatment.
  • In reaching its decision, the Court considered its obligations in exercising its parens patriae jurisdiction against the parents’ wishes and the current condition of the child.

The background

In March 2024, the first defendant, a 14-year-old girl, was diagnosed with Pre B Acute Lymphoblastic Leukemia. She has preexisting conditions, including Epilepsy, Autism Spectrum Disorder and severe developmental delay, such that her developmental age is 18 months to 3 years. Without treatment, her life expectancy was estimated to be only two to four weeks.

Her parents, the second and third defendants, refused treatment and wanted the child to be able to die at home to avoid further suffering. They were concerned that the treatment would be particularly traumatic for the child as her pre-existing conditions meant she would likely need to be physically restrained or anesthetized to receive treatment. The parents’ concerns regarding the proposed treatment were supported by evidence provided by doctors treating the child’s pre-existing conditions.

The Plaintiff Hospital applied to the Court and requested its intervention pursuant to the Court’s parens patriae jurisdiction, to administer medical treatment against parental opposition. The proposed treatment was described as debilitating and intensive, lasting over two years and three months, with a 90% chance of survival. The independent legal representative appointed to act on behalf of the child supported the Hospital's stance and emphasised that it was in the child's best interests to receive the proposed treatment.

The decision

The Court accepted that the wishes of the parents were not based on any religious or cultural belief but were derived completely from their love for their daughter and their desire for her to avoid further suffering. The Court also accepted that she was an already medically challenged child, but ultimately noted that its parens patriae jurisdiction required that the Court base its decision on the best interests of the child, and on no other considerations.

The Court acknowledged that although the child had significant underlying conditions, her life was not without joy and, but for the leukemia, would have continued to live. The Court went on to consider that leukemia is an illness capable of being cured, and with successful treatment, would return the child to her previous life.

Elkaim AJ noted that without treatment the child would have a very short lifespan, and that 'not making the orders is effectively a death sentence'. Whilst acknowledging how onerous the treatment will be for the child and her parents, it was considered that the benefit of pursuing a curative treatment outweighed the potential anguish of enduring the treatment.

The Court ordered that the Hospital may lawfully provide treatment to the child and that the Hospital staff must engage with the child’s parents to ensure they are consulted throughout her treatment.

Implications for you

This decision is a reminder of the factors that the Court will consider when determining an order under its parens patriae jurisdiction, and illustrates that the Court bases its decision only on the best interests of the child and on nothing else.

H v OL [2024] NSWSC 271

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