A recent Supreme Court decision re-affirms existing authorities to make an order for medical practitioners to treat a child in the absence of parental consent if it is clearly in the child’s ‘best interests and welfare’.
- The Hunter New England Local Health District (Plaintiff) sought an order from the Supreme Court authorising the provision of blood product transfusions in connection with two proposed surgeries to be undertaken by the 3-year-old girl (JI). An order was sought on the basis that JI’s parents (Defendants) did not consent for their child to receive any blood transfusions due to their Jehovah’s Witness faith. The question before Henry J was whether the practitioners were able to treat JI with blood products without the parents' consent or a court order.
JI was born with a range of serious medical conditions, including omphalocele, renal abnormalities, cardiac defect and developmental dysmorphism. These conditions meant that JI suffered from several medical complications, such as malrotation and twisting of the intestines, an anterior abdominal wall hernia defect, and was dependent on tube feeding. JI’s parents consented to their child undergoing two surgeries recommended by her treating specialist, however did not consent to the use of blood product transfusions in connection with the two surgeries. The first surgery recommended was a repair of the hernia and abdominal wall defect; the second involved the insertion of a feeding gastrostomy.
The Parents were represented by counsel at the hearing. They relied on written submissions provided in advance of the hearing.
The decision at trial
The Court invoked its parens patriae jurisdiction, noting the overriding criterion on such an application was the best interests and welfare of the child. The power of the Court to make orders under its parens patriae jurisdiction is well established, including where the parents of a child have not consented to medical treatment. The role of the Court on an application such as this is to exercise an independent and objective judgment to balance the advantages or disadvantages of the medical procedure under consideration: Department of Health and Community Services (NT) v JWB and SMB (Marion’s case) (1992) 175 CLR 218 at 240; Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; Sydney Children’s Hospital Network v X (2013) 49 Fam LR 330; X v Sydney Children’s Hospitals Network (2013) 85 NSWLR 294. Evidence from the treating practitioner indicated that it may be clinically necessary to treat the child with blood products to manage the risk of damage to her health, including mitigating the risk of death.
Henry J ultimately found that it was 'clearly' in JI’s best interests and welfare to authorise the use of blood transfusion procedures in relation to the two surgeries to be undertaken. The Court accepted the plaintiff’s submission that it was preferable, and in the child’s best interests, for her medical team to be certain that the proposed treatment was authorised before JI’s condition deteriorated to a point of an emergency whereby an urgent decision as to treatment would be required.
Relevant factors considered by the Court in its independent and objective judgement were (Re Alex (2004) 180 FLR 89):
- the nature of the medical condition and treatment;
- the reasons for the treatment;
- the risk to the child’s health with and without the proposed treatment;
- the alternative courses of treatment that was available;
- the views and faith of the child’s parents; and
- the views of the treating doctors.
Before administering any blood product to the child, the practitioners at the hospital had to be satisfied that:
- The blood transfusion was necessary, as a matter of urgency, to save the child’s life or prevent serious damage to their health: s 174(1) Children and Young Persons (Care and Protection) Act 1998 (NSW);
- They avoided the unnecessary use of blood transfusions at all times, by exhausting all alternative treatments and adopting a blood conservation strategy.
This decision follows a line of cases where Jehovah’s Witnesses’ refusal of consent for treatment has been overturned by a court, when it is in the best interests of that child for that treatment to occur.
Implications for you
It is important to ensure that the appropriate consents are in place prior to undertaking treatment for a child, including any remedial treatments that may be required such as in this case, a blood transfusion. If a parent or guardian refuses to provide consent, but that treatment is in the best interests of the child, an order should be sought from the Court prior to performing the treatment on the child. It was recognised by the Court that it is preferable, and in the child’s best interests, for a medical team to be certain that the proposed treatment is authorised before JI’s condition deteriorated to a point of an emergency whereby an urgent decision as to treatment would be required.