Unsuccessful parens patriae application

date
16 January 2025

The Victorian Supreme Court refused an application for orders for restrictive practices on a pregnant, intellectually impaired minor.

In issue

  • The Supreme Court of Victoria, under its parens patriae jurisdiction, considered whether restraint of a pregnant minor with a learning disability was to be authorised for the purposes of providing her with medical care, which was said to be in her best interest.

The background

The respondent was 15 years old and 32 weeks pregnant. An application was made by the Secretary (applicant), who was the person with parental and guardianship responsibility of the respondent pursuant to the Children, Youth and Families Act 2005 (Vic), claiming the respondent’s intellectual disability prohibited her from making competent decisions about her health care.

Orders were sought by the applicant to authorise restraint of the respondent to allow her to receive medical care, which was argued to be in her best interest. Of most urgency was having the respondent undergo blood tests for various conditions. The respondent purportedly had a strong aversion to needles and historically would withdraw her arm and become distressed when attempts were made to draw her blood. These reactions were considered to be a withdrawal of consent to the taking of her blood.

The decision at trial

Gray J ultimately considered three key questions to determine whether the court should exercise its powers under the parens patriae jurisdiction. The questions considered included:

  1. was there a real risk that the respondent would go into early labour imminently?
  2. if so, what medical treatments and associated restraints would be in her best interests to authorise urgently? and
  3. if the risk of imminent pre-term labour was remote, were there any medical interventions that were nevertheless so pressingly urgent that they would justify immediate orders for the respondent’s restraint, even without proper notice of the proceeding having been given to the respondent?

Ultimately, Gray J was not satisfied based on the evidence before the court that authorising restraint of the respondent for the purposes of obtaining blood samples was urgently required. However, the court did accept that undergoing blood sampling was in the respondent’s best interest and that, as time passes, a future argument with respect to some form of restraint to facilitate blood testing would become more persuasive if the respondent continued to refuse.

The originating motion was adjourned to a date to be fixed not before 10 December 2024, at which the Secretary reserved their rights to press for all the orders sought at a future hearing.

Implications for you

This decision is a helpful reminder of the factors the court may consider when determining an order under their parens patriae jurisdiction, particularly with respect to the difficulties faced by the court when balancing the interests of a child against professional medical opinion.

Secretary DFFH v Hage (a pseudonym) [2024] VSC 764

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