BIRKETT v CENTRAL SYDNEY AREA HEALTH SERVICE [1996] NSWCA 48

BIRKETT v CENTRAL SYDNEY AREA HEALTH SERVICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE JJA and ABADEE AJA 18 November 1996, 18 November 1996

[1996] NSWCA 48

Professions and trades — Medical practitioners — Absence of parental consent — Children (Care and Protection) Act 1987.

PROFESSIONS AND TRADES — MEDICAL PRACTITIONERS — ABSENCE OF PARENTAL CONSENT — CHILDREN (CARE AND PROTECTION) ACT S20A — four day old baby suffering severe intestinal bleeding — doctor administers full blood transfusion — doctor aware parents did not consent to transfusion — doctor mistakenly believes care order made pursuant to s62A — whether doctor had formed opinion bringing her within protection of s20A — trial judge considers requirements under s20A and concludes the doctor held an "opinion" of the necessary kind — on appeal, appellant mother submits doctor's opinion, having regard to all the circumstances at the time, was not within s20A of the Act and trial judge erred in his interpretation of the section. HELD: no error in the trial judge's interpretation of the relevant section or in his findings of fact.

ORDERS Appeal dismissed with costs.

Priestley, Clarke JJA and Abadee AJA This appeal arises from proceedings in which the plaintiff, a child who was born on 22 January 1991, by his mother acting as his next friend, claimed that blood transfusions administered to him within a few days of his birth by medical practitioners in two hospitals were administered without the prior valid consent of a parent of the plaintiff or anyone else on his behalf. The defendants were the Health Services conducting the hospitals in which the transfusions were administered.

The proceedings were heard by Bryson J who dismissed them, explaining his reasons for doing so in appropriate detail.

There were a number of medical practitioners involved in the administration of blood transfusions in the course of the child's treatment at the Blacktown District Hospital and at the Children's Hospital.