The Sydney Children’s Hospitals Network v AA [2021] NSWSC 1123

Supreme Court New South Wales

Medium Neutral Citation: The Sydney Children's Hospitals Network v AA [2021] NSWSC 1123 Hearing dates: 2 September 2021 Date of orders: 2 September 2021 Decision date: 02 September 2021 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Use of blood and blood products authorised on terms Catchwords: CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae — Child requiring heart surgery — Where sole parent consents to surgery but refuses consent to use of blood and blood products due to religious belief Category: Principal judgment Parties: The Sydney Children's Hospitals Network (Plaintiff)

AA (First Defendant) The Mother (Second Defendant) Representation: Counsel:

K Kumar (Plaintiff) The Mother (In person)

Solicitors:

NSW Health (Plaintiff) File Number(s): 2021/250916 Publication restriction: On 2 September 2021, the Court made an order pursuant to s 7(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting the publication or other disclosure of any information tending to reveal the identity of AA, the Mother, the Surgeon, the hospital, any witness in the proceeding and any of the medical practitioners, nursing staff or other such persons who have provided or are to provide medical, surgical and nursing or ancillary treatment to AA.

EX TEMPORE Judgment (REVISED) 1. This is an application in the parens patriae jurisdiction of the Court in relation to AA, a 17 month old boy. AA has been diagnosed with a congenital heart defect known as a Ventricular Septal Defect, which will require surgical repair. That has been scheduled for later this month. 2. This application has been brought by the plaintiff because AA's mother (the Mother), who is the sole person responsible for AA, is a member of the religious group known as the Jehovah's Witnesses. As is well known, adherents of that faith refuse to receive, or refuse to permit those for whom they care, to receive blood transfusions. This belief is based upon how adherents understand the account in the New Testament of the First Council of Jerusalem, at which it was decided that Christians should "abstain from … blood" (see Acts 15: 28–29, New Revised Standard Version translation). 3. There is no question that the Mother loves her son very much and wishes to ensure the best possible care for him. She has fully co-operated with, and is very appreciative of, the doctors caring for AA. Her evidence makes clear that she understands and consents to AA receiving all the medical treatment that he requires, including the surgical correction of the congenital heart defect from which he is suffering, up to but not including the point of using blood or blood products. She has respectfully confirmed this position again in addressing the Court this morning. 4. The medical profession is very familiar with patients refusing blood transfusions on religious grounds. To their credit, AA's doctors have approached the matter with great sensitivity and have sought as far as possible to accommodate the Mother's concerns. The Visiting Medical Officer who will perform AA's surgery (the Surgeon) and other medical practitioners treating AA are taking steps designed to avoid the use of blood and blood products. As it happens, and all going well, the Surgeon's evidence is that it may not be necessary to use blood or blood products in treating AA before, during or after his surgery. Nevertheless, the Surgeon's evidence also makes clear that it may become necessary to do so in order to maintain AA's physical wellbeing. The Court is well satisfied that the Surgeon and other physicians treating AA will do everything they can consistent with their obligation to act in his best interests and to maintain his wellbeing to avoid the use of blood or blood products, but the possibility must nevertheless be addressed. 5. The Court expresses its gratitude to Ms K Kumar of Counsel, who appeared for the plaintiff, for her clear and comprehensive written submissions which set out the relevant legal principles and considerations in this case. There is no doubt that the Court has jurisdiction, acting parens patriae, to make orders approving medical treatment for a person such AA who is unable, in this case by reason of age, to consent for themselves. 6. It is also uncontroversial that orders of this kind can be sought, as it were, in advance. No one disputes that AA must have the forthcoming surgery. However, it would obviously not be in AA's best interests — the paramount test which must guide the Court — for an application to be left to the time when it has become truly urgent, perhaps because a life threatening situation has arisen. 7. In the end, the issue presented for the Court's determination was a narrow one: framing orders that would, on the one hand, permit the medical team to take such steps as they considered appropriate in their professional opinion in the best interests of AA, including the administration of blood and blood products, and, on the other hand, respecting as far as possible the Mother's conscientiously held objection to the administration of blood and blood products to her son. Her fundamental submission was that if the Court was to authorise that to be done, it should only be permitted as a last resort. 8. The orders which I will shortly make seek to achieve, solely in AA's best interests, the balance between the considerations to which I have just referred. The parties have had the benefit of considering those orders, which I arranged to be circulated, and I have been informed by Ms Kumar that her client consents to orders in those terms. 9. There is only one matter to which it is necessary for me to make specific reference. Assuming all goes well, as everyone hopes, AA will leave the immediate care of the Surgeon and the Surgeon's colleagues at the Heart Centre for Children in Sydney and return to his home in another part of the state. The Mother expressed her concern that if AA requires post-operative medical attention at his local hospital, the doctors there may not be as familiar as the Surgeon with the techniques and possibilities available that might avoid the need to administer blood or blood products. 10. The Mother's concern is entirely reasonable but it must be acknowledged that the Court is guided solely by AA's best interests. The Court must ensure that the orders that it makes leave sufficient flexibility to whomever the doctors are who may be caring for AA in the six weeks after his surgery to do what they have to do, including in urgent circumstances. This must include the possibility of administering blood or blood products if it becomes necessary in the presenting circumstances at the time. 11. Nevertheless, I wish to make it clear that, as far as the Court is concerned, it is to be hoped that if AA presents at any hospital in the six weeks after his surgery, the doctors caring for him will take all available steps as circumstances permit to contact the Surgeon to seek the Surgeon's advice about what can be done, including whether it is possible to avoid the administration of blood or blood products. Similarly, if the Surgeon is unavailable, the Court notes that there are other senior medical staff and consultant surgeons at the Heart Centre for Children who will have access to AA's records who could be contacted to obtain their input, if possible, in relation to AA's treatment and whether blood or blood products are required. 12. The Court will make orders in accordance with the short minutes circulated to the parties which include: "The Court: … 9. NOTES that the plaintiff on behalf of AA's treating physicians has informed the Court that all steps consistent in their professional opinion with the best interests and physical wellbeing of AA will be taken pre-operatively, during the Surgery (as defined in Order 10) and perioperatively to avoid the use of blood or blood products in the treatment of AA. 10. DECLARES pursuant to the Court's parens patriae jurisdiction that in connection with, arising from or relating to the carrying out on AA of the surgical correction of a Ventricular Septal Defect (the "Surgery") the responsible Visiting Medical Officers, medical practitioners, nursing and other staff at any hospital at which AA is being treated may use blood or blood products in the course of the Surgery or for the related treatment of AA to the extent that in the professional opinion of the responsible Visiting Medical Officer or medical practitioner at the time that in the best interests and to ensure the physical wellbeing of AA the use of blood or blood products cannot be avoided. 11. ORDER 10 has effect from the date of this Order up to and including the day which is 42 days after the Surgery. …"