New South Wales Supreme Court CITATION : Re Paul [2008] NSWSC 960 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 10 September 2008 JUDGMENT DATE : 10 September 2008 JURISDICTION : Equity Protective List JUDGMENT OF : Hamilton J DECISION : Consent by Court granted to treatment of infant by blood transfusion in lieu of consent of parents. CATCHWORDS : FAMILY LAW AND CHILD WELFARE [108] - Child welfare other than under Family Law Act 1975 (Cth) - Wards of Court - Supreme Court - Inherent jurisdiction to protect infants - Orders for Court's consent to medical treatment of infants in lieu of parents' consent - Whether order for wardship necessary. CATEGORY : Principal judgment In re O'Hara [1900] 2 IR 232 J v C [1970] AC 668 CASES CITED : Marion's Case (1992) 175 CLR 218 Re Jessica [2001] NSWSC 1207 Re Jules NSWSC 20 September 2008 unreported Royal Alexandra Hospital For Children v J [2005] NSWSC 465 PARTIES : Director General of the Department of Community Services (P) Names suppressed (Ds) FILE NUMBER(S) : SC 4748/08 COUNSEL : R L Harper (P) R I Van Witsen, Solicitor (Ds) SOLICITORS : I V Knight, Crown Solicitor (P) Vincent Toole, Solicitor (Ds) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 10 SEPTEMBER 2008 4748/08 RE PAUL JUDGMENT 1 HIS HONOUR: This is an application in effect to substitute the consent of the Court for the consent of the parents of a child to the administration of medical treatment by way of blood transfusion. The child is a boy aged just over one who has been diagnosed with an unresectable abdominal neuroblastoma. The parents' refusal or reluctance to consent to treatment by blood transfusion arises from their faith as Jehovah's Witnesses. I should make it clear at once that it is plain on the evidence that they are caring parents. Part of the evidence of this is the fact that they have been willing, indeed anxious, to cooperate with the child's medical advisers concerning all aspects of his potential treatment apart from their reluctance in relation to transfusions. 2 The power of the Court in what is known as its parens patriae jurisdiction to make orders of the kind sought is plain: see per Einstein J in Royal Alexandra Hospital For Children v J [2005] NSWSC 465 at [19], [20] and cases there cited. 3 The jurisdiction must be exercised in the best interests of the child. Bearing in mind its intrusive nature it must be exercised cautiously. It was said by Fitzgibbon LJ in In re O'Hara [1900] 2 IR 232 at 240: "In exercising the jurisdiction to control or to ignore the parental right the Court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded." This dictum has been adopted by Lord Guest in the House of Lords in J v C [1970] AC 668 at 695 and by Brennan J in the High Court in Marion's Case (1992) 175 CLR 218 at 280. 4 Another legal matter that arises in dealing with such cases is the question of whether, if the Court is inclined to make an order authorising treatment, it should before doing so order that the child be made a ward of Court. It is made plain by Brennan J in Marion's Case ibid that "… protective orders may be made either by the machinery of wardship: Fountain v Alexander (1982) 150 CLR at p 626 per Gibbs CJ, or by ad hoc orders which leave the guardianship and custody of the child otherwise unaffected: In re N (Infants) [1967] Ch 512 at p 531; In re L (An Infant) [1968] P 119 at pp 156 - 157." 5 The practice in this Court of recent years has generally been to make ad hoc orders without making the child a ward of Court: see my decision in Re Jessica [2001] NSWSC 1207 at [7] and cases there cited. However, it has been drawn to my attention that recently in this Division Brereton J ordered a child to be made a ward as a preliminary to making a treatment order: Re Jules NSWSC 20 September 2008 unreported. 6 I turn to the facts of this case. The medical witness has been Dr Michael Stevens of the Children's Hospital at Westmead. It is apparent from all the evidence that he has established a very worthwhile rapport with the parents. He has explained the situation to them, he has given them written assurances that all reasonable efforts will be made to pursue the child's treatment without the use of blood transfusions and he has repeated those assurances today on oath in Court in the parents' presence. 7 I do not need to go into details. Dr Stevens has given evidence that if the chemotherapy treatment which is proposed depresses various elements in the child's blood to dangerous degrees, the situation will need to be remedied by a transfusion, in the absence of which the condition would be life threatening. It is true that Dr Stevens has indicated that in the case of juvenile chemotherapy patients it is not in all cases that transfusion becomes necessary. However, there is a better than even chance in his opinion that treatment by transfusion will be necessary. Upon that evidence, if the parents will not give consent, then the Court should and will. 8 It cannot be said that the matter is so urgent at the moment in the sense that it is indicated that a transfusion must immediately be administered. There has been some suggestion by Ms Van Witsen for the defendants that the making of an order is therefore premature. Dr Stevens' reaction to this is that he does not wish the chemotherapy treatment to commence until a Court consent is in place and he fears that, if the application is left until there is imminently a life threatening situation, the child's welfare or even life could be threatened by the delay. It is also in my view most desirable that the matter can be considered by the Court at some leisure and with some calm in circumstances such as the present, rather than in an emergency application that must be dealt with in the utmost haste. 9 In the circumstances I am minded to make at once an order giving the Court's consent in lieu of that of the parents to treatment by transfusion. I am not, however, prepared to give it in generalised terms where the decision is to be made by a nameless administrator or any doctor within the hospital. Consideration can be given to the precise terms of the order but, particularly bearing in mind what I have said as to the relationship established between Dr Stevens and the parents, I should want it to be incorporated in the order that the treatment should be given on the recommendation of Dr Stevens or, in case of his unavailability, by a doctor named by him, so that the parents may have assurance that what is happening is happening in accordance with Dr Stevens' philosophy that no alternative treatment will be satisfactory in the circumstances. 10 As I intend to make such an order, the question now arises as to whether or not I should order the child to be a ward of Court. As I have already said, the generality of orders made in this Court of late years has been for an ad hoc order for consent. Re Jules, the case in which Brereton J made an order for wardship, was a case relating to vaccination against hepatitis B. In that case the parents did not attend at the hearing before the Court. Furthermore, they had proved recalcitrant by disobeying at least one order of the Court in relation to the child being brought for treatment. In those circumstances, I have no doubt that an order for wardship was appropriate. 11 In this case, as I have already said, the parents have cooperated with the hospital authorities in relation to treatment except in this one regard. Furthermore, the mother gave oral evidence before me in which, moved to tears, she said that, if a Court order giving consent were made and the parents were required to bring the child to hospital for a transfusion to be administered, they would bring the child for that purpose, because they must obey the law. In the face of that very different attitude of these parents, I believe that an order for wardship is unnecessary. I further believe that the making of an order for wardship at this stage would be an unnecessary affront to parents whose attitude as shown in evidence I have set out above. 12 In those circumstances I do not propose to follow the course followed by Brereton J in Re Jules and I simply propose to make the order giving the Court's consent. I shall make an order that the parents bring the child for treatment by way of transfusion if required to do so on the recommendation of Dr Stevens or his substitute. I do this, not because I doubt their goodwill, but because I believe that that will make their legal duty clear and will make it easier for them to bring the child to be treated in a way in which they really do not want him to be treated. ********** 17/09/2008 - File incorrectly created in wrong List Court file number therefore wrong. - Paragraph(s) File number DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.