H v AC [2024] NSWSC 40

Supreme Court New South Wales

Medium Neutral Citation: H v AC [2024] NSWSC 40 Hearing dates: 17 – 18 January 2024 (hearing); 01 February 2024 (mention) Date of orders: 19 January 2024 Decision date: 02 February 2024 Jurisdiction: Equity - Duty List Before: Meek J Decision: Medical treatment ordered Catchwords: COURTS — Jurisdiction — parens patriae — 16 year old child diagnosed with bone cancer (Ewing sarcoma) underwent induction cycles of chemotherapy — Following the completion of 4 of 17 cycles of treatment, PET and MRI scans disclosed spectacular reduction in size of tumour — Scans unable to detect existence of tumour deposits below a threshold of size — The treating practitioner discussed results with the child and parents and other medical professionals — The child and family devout Christians and the child believes she has been miraculously healed and declined further treatment — Uncontested medical evidence suggests the cancer subsists — Issues as to the child's decision-making capacity and 'Gillick competence' — Hospital seeks a declaration that the child (now aged 17) had capacity to refuse the recommended medical treatment — Determined that child 'Gillick competent' — In the event that it is found that child is 'Gillick competent' no party (Hospital, child and parents) sought an order authorising treatment — However parties accepted the Court had power to make such an order — Considerations regarding whether treatment ought to be authorised — Order made for authorisation of treatment CIVIL PROCEDURE — Hearings — Suppression and non-publication orders WORDS AND PHRASES — Miracles and prayer RELIGION — Nature of miracles and prayer briefly discussed Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Family Law Act 1975 (Cth) Minors (Property and Contracts) Act 1970 (NSW) Cases Cited: AC v Manitoba (Director of Child and Family Services) [2009] 2 SCR 181 Bell v The Tavistock and Portman NHS Foundations Trust [2020] EWHC 3274 (Admin); [2021] PTSR 593 CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193; (2008) 40 Fam LR 122 Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220 Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644 E (Mrs) v Eve [1986] 2 SCR 388; (1986) 31 DLR (4th) 1 Fountain v Alexander (1982) 150 CLR 615; [1982] HCA 16 Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 In re L (An Infant) [1968] P 119 In re N (Infants) [1967] Ch 512 In re O'Hara [1900] 2 IR 232 J v C [1970] AC 668 Johnson v Director-General of Social Welfare (Vic) (1976) 135 CLR 92; [1976] HCA 19 K v Minister for Youth and Community Services [1982] 1 NSWLR 311; (1982) 8 Fam LR 756 King v Low [1985] 1 SCR 87 Minister for Health v AS (2004) 29 WAR 517; [2004] WASC 286 P v NSW Trustee and Guardian [2015] NSWSC 579 R (Bell) v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363; [2022] PTSR 544 R (Bell) v Tavistock and Portman NHS Foundation Trust [2022] PTSR 931 Re A (2022) 11 QR 1; [2022] QSC 159 Re Alex [2004] FamCA 297; (2004) 31 Fam LR 503 Re Bernard [2009] NSWSC 11 Re Imogen (No 6) [2020] FamCA 761; (2020) 61 Fam LR 344 Re Paul [2008] NSWSC 960 Re Rosie (No 2) [2022] NSWSC 1750 Re Rosie (No 3) [2023] NSWSC 37 Re S (Child as parent: Adoption: Consent) [2018] 2 WLR 1029; [2017] EWHC 2729 (Fam) Re Sally [2009] NSWSC 1141 Re X (a minor) [1975] 1 All ER 697 Royal Alexandra Hospital for Children trading as Children's Hospital at Westmead v J [2005] NSWSC 465; (2005) 33 Fam LR 448 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218; [1992] HCA 15 Small v Phillips (No 3) [2020] NSWCA 24 The Hospital v S (a minor) [2019] NSWSC 642 The Sydney Children's Hospital Network v X [2013] NSWSC 368 Wellesley v Duke of Beaufort (1827) 2 Russ 1; 38 ER 236 Wellesley v Wellesley (1828) 2 Bli N S 124; 4 ER 1078 X v The Sydney Children's Hospitals Network (2013) 85 NSWLR 294; [2013] NSWCA 320 Young v Young [1993] 4 SCR 3 Texts Cited: Bible - New International Version Carson, Donald Arthur et al (eds), New Bible Commentary (21st Century ed, 1994, Inter-Varsity Press) Donne DD, John, Dean of St Paul's Cathedral, Devotions (Upon Emergent Occasions, and several steps in my Sickness) (1840) Macquarie Dictionary, online ed Marshall, Ian Howard et al (eds), New Bible Dictionary (3rd ed, 1996, Inter-Varsity Press) Shead, Stephen, Growing in Prayer - Learning to Pray with Dependence and Delight (2019, Matthias Media) WebsterWorld, "Betty Cuthbert", accessed 30 January 2024 Category: Principal judgment Parties: H (Plaintiff) AC (First Defendant) The Mother (Second Defendant) The Father (Third Defendant) Representation: Counsel: K Kumar (Plaintiff) K Shea (First Defendant) J Clifton (Second and Third Defendants)