Re Elm [2006] NSWSC 1137

New South Wales Supreme Court

CITATION : Re Elm [2006] NSWSC 1137

HEARING DATE(S) : 11 September 2006

JUDGMENT DATE : 30 October 2006

JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

DECISION : Declaration as to effect of statutory provision in circumstances anticipated, and interlocutory injunction, granted ex parte.

CATCHWORDS : FAMILY LAW AND CHILD WELFARE – Child Welfare – mother proposing to refuse treatment for child in utero – whether consent to medical treatment by person having "care responsibility" is sufficient if person having parental responsibility does not give, or refuses, consent – whether doctors statutory authority to carry out urgent medical treatment without consent extends to continuation of that treatment – ex parte proceedings.

LEGISLATION CITED : (NSW) Children and Young Persons (Care and Protection) Act 1998, ss 43, 44, 49, 61, 157, 174 (NSW) Uniform Civil Procedure Rules, rr 10.1, 36.16

B & B, Re; Family Law Reform Act 1995 (1997) 21 Fam LR 676, 729-30; (1997) FLC 92-755 CASES CITED : Harrison & Woollard (1995) 18 Fam LR 788, 805; (1995) FLC 92-598 NSI Group Pty Ltd v Mokas [2006] NSWSC 976 Talbot & Talbot (1993) 16 Fam LR 910; (1993) FLC 92-397

PARTIES : Director-General, Department of Community Services (plaintiff) Supressed (defendant)

FILE NUMBER(S) : SC 4763/06

COUNSEL : R J Bromwich (plaintiff)

SOLICITORS : I V Knight, Crown Solicitor (plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

BRERETON J

Monday 30 October 2006

4763/06 Re "Elm" JUDGMENT 1 HIS HONOUR: The defendant is pregnant, and when this application was heard on the evening of 11 September 2006, was due to give birth on 22 September 2006. She arrived in Australia, from an African nation where she was in a refugee camp, in or before 2002. She has tested positive for the Human Immunodeficiency Virus (HIV). Although she initially agreed to take medication during her current pregnancy, she believes that God has miraculously healed her, and ceased taking all medication in March 2006. She does not wish her child to receive the medication which her doctors recommend be administered upon birth, for the reason that she believes that God has cured her and will protect her child. Although a public guardian was appointed in respect of her under the Mental Health Act 1990 (NSW) on or about 1 September 2006, that appointment was revoked on or about 4 September. 2 According to two officers of the Department of Community Services who interviewed her on 5 September 2006, the defendant maintained that she would not agree to taking anti-HIV medication, nor allow her baby once born to receive such medication, nor have a caesarean section. She did not believe that the child would require on-going medical treatment and monitoring once born, though she did not intend to breast feed the baby. Although she indicated that she would not be able to continue to live in accommodation that she was sharing with a male friend much longer after the birth of the child, she did not appear to have made alternative appropriate accommodation arrangements, and had made only very limited arrangements about baby needs. She appeared to have limited social networks and no family in Australia. She said that she did not know who the father of the child was, and that she was on social security payments. She maintained that God had healed her and would protect her child. 3 Whatever she might believe, the defendant is still HIV-positive. Her blood viral load has risen from a low 49 copies/ml on 6 March 2006 (shortly before she ceased taking medication) to more than 100,000 (the highest value that can be reported) on 30 March 2006. As at 27 July 2006, she had a low CD4 count of about 270/ml, and a high HIV viral load of about 83,900 copies/ml. Given her refusal to take anti-HIV medication or to permit her child to do so, there is a serious risk that the child will contract HIV from her upon birth – a risk which would be reduced if she did not have a vaginal birth, and/or consented to the child receiving anti-HIV medication on birth and for at least four weeks thereafter. Having regard to the mother's high viral load and low CD4 count, and her refusal to undergo elective caesarean section, the risk to the child of contracting HIV is about 50-70% if no anti-HIV treatment is given immediately on birth and no breast milk is given. If anti-HIV treatment is commenced as soon as possible after birth and maintained, the risk falls to about 10-15%. If the child receives breast milk from the infected mother, that risk would double, to about 20-30%. Given that, at present, the defendant does not intend to breast-feed but to bottle-feed the baby, but refuses to consent to caesarean section, at least unless there are obstetric complications, there is potential for a risk of HIV infection in the child being reduced from as high as 70%, to as low as 10%, if appropriate medical treatment for the child is instituted promptly following birth.