The Gillick competent child and Section 20 of the Transplantation and Anatomy Act 1979 (Qld)

22 January 2019

The Queensland Supreme Court recently authorised a hospital to administer a blood transfusion to a Gillick competent 15 year old patient who is pregnant with twins.

The Court did not resolve the question of whether s20 of the Transplantation and Anatomy Act 1979 (Qld) (the Act) can override a mature minor’s refusal of a blood transfusion.

The issue of consent

Each of the patient’s treating practitioners considered her to be mature for her age, and assessed her as Gillick competent in relation to the decision to consent to or refuse a blood transfusion.

Initially, the patient refused to consent to the administration of blood products, even if necessary to save her life, due to her Jehovah’s Witness upbringing. She later, in the absence of her parents, gave consent to receiving a blood transfusion in an emergency situation.

The patient’s father advised the treating team that he did not consent to the administration of blood products to the patient for religious reasons. Later, when served with the application, he stated that that he neither consented to nor opposed the orders sought for the purposes of the application. The patient’s mother did not state her position.

The legal context

Section 20 of the Act protects medical practitioners from criminal liability for administering a blood transfusion to children in emergency situations against the wishes of the child’s parents or of a “person having authority to consent”. It also deems the transfusion to have been given with consent for all purposes in circumstances where the criteria of the section are met.

It is not clear from the Act whether the category of persons “having authority to consent” includes a patient who is a Gillick competent minor, or is limited to third parties such as non-parent guardians.

To date, this has not been addressed by a Queensland court.

In the Mercy Hospitals case1 last year, the Victorian Supreme Court considered a similarly worded Victorian provision which also contained the phrase some “other person having authority to consent”.2 That case concerned the administration of blood to a 17 year old Jehovah’s Witness patient in the event of a postpartum haemorrhage.

The Victorian Supreme Court drew a distinction between the scope of its parens patriae jurisdiction (which is broad and takes into account all the welfare interests of the minor) and the scope of the Victorian provision (which is only engaged if the minor is likely to die). The Court made the declaration that was sought. It was not necessary in that case for the Court to decide whether the hospital could rely on the Victorian provision to override the minor’s refusal of treatment.

The application

In this case, despite the minor patient’s eventual consent, the treating team considered it prudent to seek court orders because:

  • The patient’s consent could be withdrawn due to influence by her parents or the Jehovah’s Witness community, or of her own accord at any time before the caesarean procedure.
  • It is not clear whether the protections afforded to medical practitioners under the Act extend to overriding the refusal of treatment by a Gillick competent minor. The treating team therefore could not confidently rely upon the legislation.
  • In the event that the patient became unconscious during or after delivery, the decision around consent would be made by the patient’s parents. The treating team were not concerned that the decision may be in the patient’s best interests.
  • Any delay in administering a blood transfusion to the patient, for instance if the question of consent became unclear during the procedure, could increase the risk of an adverse health outcome.

We acted for the Hospital and sought orders including a declaration authorising the treating team to administer such blood products to the patient during labour, delivery and the post partum period as may be desirable or necessary according to good medical practice.

The decision

The Court granted the orders sought, and commended the Hospital for seeking orders pre-emptively and in a timely manner.

Unfortunately, the Court did not shed further light on section 20 of the Act and whether its protection extends to override the refusal of a Gillick competent child. It was not necessary for the Court to decide this issue, as it was able to make the orders under its inherent parens patriae jurisdiction.

Things to consider

Clinicians in the future may similarly want certainty in the event that a blood transfusion is refused by a Gillick competent minor. It remains unclear whether they would be protected by section 20 of the Act in this situation.

What is clear from recent cases is that the parens patriae jurisdiction of the Court is broad and is able to be engaged earlier in anticipation of medical treatment. It extends to the overall wellbeing of a minor and is not limited to transfusions that are necessary to preserve the minor’s life, as is the case under the statutory provisions in some states.

The problem for hospitals is that obtaining court orders can be a time consuming and costly process. Arguably the misdirection of hospital resources to court applications is the very situation that the legislation was designed to avoid, and a case can be made for legislative amendment to clarify the position in Queensland.

Please contact us for further advice or with queries about the issues raised in this update.

1Mercy Hospitals Victoria v D1 [2018] VSC 519:[2018] VSC 519 ;mask_path=.
Section 24 of the Human Tissues Act 1982 (Vic) applied, in certain circumstances, to relieve medical practitioners from criminal liability for administrating blood to a child where the consent of a parent or some other person having authority to consent, has been refused or not obtained.

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