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. The appeal has been brought only in respect of the administration of a blood transfusion for which Dr F Mackie, the Paediatrics Resident at the Children's Hospital, was responsible. Bryson J was of the view in regard to this blood transfusion that it was medical treatment carried out on a child under s20A of the Children (Care and Protection) Act (the Act) 1987 and thus, pursuant to subs3 of that section must, for all purposes, be taken to have been carried out with the consent of a parent of the child. S20A(1) provides, so far as presently relevant, that "A registered medical practitioner may carry out medical treatment on a child without the consent of: (a) the child; or 2 UNREPORTED JUDGMENTS (b) a parent or guardian of the person of the child, if the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child in order to save the child's life or to prevent serious damage to the child's health." For the appellant it was submitted that Dr Mackie did not hold and could not have held, at the relevant time, the opinion referred to in s20A(1). This submission took as its starting point the fact that at the time of the blood transfusion in question, Dr Mackie knew that the parents of the child were refusing to consent to any blood transfusion but was of the understanding that an order in writing had been made under s62A of the Act pursuant to which the Director General of the Department of Youth and Community Services had assumed the care of the child, and that this meant she did not need the consent of either parent before ordering the administration of the blood transfusion. Bryson J held that she was wrong in this assumption. It was then argued, on the basis of the evidence given by Dr Mackie before Bryson J, mat she could not have turned her mind to the elements of the necessary opinion under s20A(1) and thus could not in fact have entertained that opinion at the relevant time. It does not seem to us to matter whether or not Dr Mackie had in mind the terms of s20A(1) at the relevant time and considered in terms the elements of the provision. In our opinion the question for Bryson J was whether in fact at the relevant time the medical opinion then entertained by Dr Mackie concerning the treatment to be administered to the child was an opinion falling within the description of the opinion necessary to bring s20A into operation. Bryson J considered this question and came to the conclusion that the evidence established that Dr Mackie held an opinion of the kind to which the subsection refers. The appellant referred the court to various answers made by Dr Mackie in cross-examination as indicating views concerning the treatment necessary for the child at the relevant time which were said to be inconsistent with the requirements of s20A(1). It was put to her that she simply treated the child in the normal way believing that the child was under the care of the State and the parents' consent to the blood transfusion was not necessary. Dr Mackie agreed generally with this proposition. However, that does not take the appellant very far, because the whole question was what Dr Mackie's opinion was concerning the treatment of the particular child in his circumstances at the time; what would be the "normal way" of treating the child would fall within circumstances justifying an opinion of the kind referred to in s20A(1) if the condition of the child was sufficiently serious. Dr Mackie was also cross-examined about the degree of urgency for the blood transfusion which she thought appropriate in view of the child's condition. She said she did not think the situation "was desperate within minutes, no". She agreed that "the child was not in imminent danger of death at that particular time". however, she felt "that the baby was in danger". The cross-examination then continued: "Q. And imminent danger which is something that is likely to happen in the very immediate future? A. No, it was more that I felt that the baby was in danger rather than imminent danger, as you put it. Q. There was no obvious change in the baby's condition, so far as the level of danger was concerned, between 9 o/clock when you came on and, 4.30 when you started the transfusion? A. Clinically no, but the baby had dropped its platelet count during that time, and that was a change in condition because - UAKKETT v CENTRAL SYDNEY AREA HEALTH SERVICE (Priestley, Clarke JJA an@ Abadee AJA) Q. But not one suggesting that the baby was about to die though was it? A. The baby still had the potential to, because it didn't have normal clotting. Q That platelet count did not indicate that death was imminent, did it? A. No it doesn't indicate that. Q. Or that any serious damage to the child's health was imminent? A. Potential, but not imminent." It was submitted that these answers showed that whether or not Dr Mackie had the terms of s20A(1) in mind, she could not in fact have formed an opinion that it was "necessary, as a matter of urgency, to carry out the treatment on the child in order to... prevent serious damage to the child's health". Before dealing with that submission it should be noted that the following question and answer occurred in Dr Mackie's cross-examination: "Q. You did not consider that there was any imminent threat to life of this baby when you administered the transfusion, did you? A. I thought there was definitely the potential for that, because particularly of the low platelet count, that this baby was at considerable risk of having a major bleed at any moment." Also the first question and answer in re-examination were as follows: "KALFAS Q. You have been asked a question, a hypothetical question, that if you had not had the authority of the State to proceed 10 treat the baby in the normal way, you answered you would have sought it. I ask you another hypothetical question: Given all the clinical circumstances that you were confronted with, if you had sought, and been unsuccessful in obtaining the authority of the State to proceed to treat the child as you did, would you have proceeded in the same way? A. Yes I would have. The foregoing matters of evidence are by no means all the evidence relevant on the point but indicate its chief features. Bryson J dealt with this aspect of the case before him as follows: "There is no test of imminent danger in subs20A(1); there was in earlier legislation. The test is one of necessity as a matter of urgency to carry out the treatment in order to save the child's life or to prevent serious damage to the child's health; this is a test which is met not according to objective facts determined retrospectively by the court now, but according to the opinion of the medical practitioner at the time. As a test of necessity it is a rather stringent requirement, but it would be incorrect to introduce into it elements not found in the subsection, such as imminence of danger. Further, there should not be introduced some concept of inescapable essentiality of the treatment, or the exclusion of any possibility of the child's survival without the treatment. The opinion referred to is an opinion to be formed by a registered medical practitioner, and relates to what is necessary in the perception of registered medical practitioners, whose perception of the necessity of treatment is, of course, not disturbed if they can see that there is a small possibility that the patient may survive or escape serious damage to health even if they do nothing The question of necessity is not one for philosophical analysis and does not involve, as perhaps as an exercise in logic it would involve, the exclusion of all possibilities of other outcomes however small; the question is referred by the terms of the subsection to medical opinion and must be answered according to medical opinion of what is necessary; and further of what is necessary as a matter of urgency. Dr Mackie's evidence establishes that she held an opinion of the kind to which the subsection refers, and held it on reasonable grounds; the risk to life and the necessity to carry out the treatment were no less because the risk was not 4 UNREPORTED JUDGMENTS imminent. There is no need to wait until the last minute before acting under the subsection. In my opinion the treatment administered by Dr Mackie was authorised under subs20A(1)." In this passage Bryson J is essentially deciding matters of fact concerning the opinion actually held by Dr Mackie at the relevant time, and considering also whether it fell within the description in s20A(1). We do not see any error in his understanding of the subsection, subject to the minor qualification that it may be that if the opinion is genuinely held by a medical practitioner questions of its reasonableness may not arise. That question can be left for decision to a more appropriate case, because in the present case we do not think there can have been any doubt of the reasonableness of Dr Mackie's opinion. The only question, once the correctness of Bryson J's understanding of the requirement in the subsection is recognised, is whether the appellant has any basis for challenging Bryson J's factual finding that the necessary opinion existed. Having reviewed the evidence upon which he based his finding of fact, it seems to us that it was fully justified on the materials before him, which of course include his own observation of Dr Mackie in the witness box, a source of input to his conclusion not available to this court. We do not think there is any basis for interfering with his finding of fact. It follows, in our opinion, that the appeal should be dismissed, with costs. One other matter which it seems desirable to mention is that towards the end of his reasons Bryson J considered the proper construction of the words "IMMEDIATE DANGER OF ABUSE" in s62A of the Act, and expressed an opinion about their meaning. The validity of his Honour's views in this respect was not a question in this appeal. Both counsel agreed that his Honour's views were obiter dicta. That appears clearly to be correct. They thus are of no legal effect. This court is not in a position to express any view about them one way or the other. Appeal dismissed with costs. Counsel for the appellant: S Littlemore QC/AJ Bartley/S Kettle Solicitors for the appellant: Vincent Toole, Denham Court Counsel for the respondent: SD Kalfas Solicitors for the respondent: Audrey Lee, Sydney