New South Wales Supreme Court CITATION : Re Bernard [2009] NSWSC 11 HEARING DATE(S) : 2 January 2009 JUDGMENT OF : Gzell J EX TEMPORE JUDGMENT DATE : 2 January 2009 DECISION : Hospital authorised to administer blood transfusions if no other course available. CATCHWORDS : FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Parens Patriae Jurisdiction - Order sought by hospital to administer blood transfusions to a Jehovah's Witness child - Whether order should be made in opposition to parents - Whether child should be made a ward of court - Whether Family Law Act jurisdiction applies Children and Young Persons (Care and Protection) Act 1998 LEGISLATION CITED : Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) Family Law Act 1975 (Cth) Royal Alexandra Hospital v Joseph & Ors [2005] NSWSC 422 DoCS v Y [1999] NSWSC 644 Director General of the Department of Community Services v "BB" [1999] NSWSC 1169 Re Jessica [2001] NSWSC1207 CASES CITED : Re Heather [2003] NSW SC 532 Director of Community Services - re "Matthew" [2005] NSWSC 132 Royal Alexandra Hospital for Children trading as Children's Hospital at Westmead v J & Ors [2005] NSWSC 465; (2005) 33 Fam LR 448 Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193 Re Paul [2008] NSWSC 960 Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644 PARTIES : Re Bernard (Plaintiff) Bernards Parents (Defendants) FILE NUMBER(S) : SC 1004/09 COUNSEL : Mr R McIlwaine (Plaintiff) SOLICITORS : Crown Solicitor's Office (Plaintiff) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J FRIDAY 2 JANUARY 2009 1004/09 RE BERNARD EX TEMPORE JUDGMENT 1 The proceedings before me, brought by the Director General of the Department of Community Services, are for an order that, if necessary, a child be transfused. I will deal with the precise nature of the order shortly. 2 I have ordered that these proceedings be known as Re Bernard, that the child be known as Bernard, which is not his Christian name, and the defendants, his parents, be known as Bernard's parents. I have also made an order that there be no publication that would identify, or tend to identify, Bernard, except for the proper conduct of these proceedings. 3 Dr Mary Bergin is a staff oncologist of the Department of Oncology Services at the Children's Hospital Westmead. She is Bernard's treating oncologist and has responsibility for the management of his medical care. 4 The orders now sought are that Dr Bergin, or in her absence the head of the Department of Oncology Services, or in their absence the Director of Medical Administration of the Children's Hospital Westmead be authorised to carry out by any qualified member of staff of the hospital, or any qualified medical practitioner visiting the hospital, the transfusion of blood or blood products, and treatment ancillary to that. I will refer to the head of the Department and the Director of Medical Administration as Dr Bergin's substitutes. 5 The orders will require notice to be given to Bernard's parents, if possible, before any transfusion takes place and will include an order defining the legal duty of Bernard's parents to bring Bernard for treatment by way of transfusion, if required to do so, on the recommendation of Dr Bergin or her substitutes. 6 The parents of Bernard endured extreme circumstances before Bernard's condition was diagnosed. He is approximately two and a half years old. The symptoms that manifested themselves were that Bernard became irritable, clingy and stopped eating. He slipped and hit his head in the bathroom. He was immediately rushed to the emergency section of Wollongong Hospital by his parents. The doctor who saw him said nothing was broken. No x-ray was taken. About two weeks later he had another fall while at the park. Bernard's parents took him to the emergency section of Wollongong Hospital. They were told he was alright. Again, no x-ray was taken. The parents noticed that Bernard was still limping so, even though they had been told he was alright, the parents took him to see a doctor in a medical clinic at Dapto. Bernard's lower back and hip were x-rayed, and again the parents were told he was alright. They were still concerned about Bernard so they took him to their doctor in Wollongong who said he might have pulled a muscle. 7 On 17 December 2008, Bernard stopped walking and his parents were terribly concerned. Even though all the doctors had been saying he was alright they knew something was wrong. They immediately took him to an osteopath in Dapto where he was again x-rayed. They were told that nothing was wrong with his bones. They asked the osteopath whether they should take Bernard to the Children's Hospital. He said no but gave them a referral to a paediatrician but they could not secure an appointment before February 2009. 8 On 26 December 2008, Bernard did not seem to be able to stand. His parents took him to Westmead Children's Hospital. One of the doctors who saw him said he looked pale and ordered a blood test. About an hour later when he had the results of the test he told the parents that there was a moderate chance that Bernard had leukaemia. They were horrified. They were subsequently told by Dr Bergin that Bernard has acute lymphoblastic leukaemia. 9 On 30 December 2008 Dr Bergin prepared a report a copy of which she gave to Bernard's parents. On that day, Bernard had an operation to insert a central line. Prior to the operation Dr Bergin said to Bernard's parents words to the effect: "It may well become necessary to give Bernard a platelet transfusion and this will be up to the surgeon. I understand you cannot give me consent for this transfusion because of your religious beliefs, however, if it is necessary we will go ahead and give it." 10 Blood tests carried out on Bernard on 31 December 2008 revealed that Bernard's haemoglobin count was 63. Dr Bergin says it is usual practice to conduct a transfusion when a child's haemoglobin count drops below 70, but she had observed that Bernard was tolerating the low haemoglobin levels. Given that tolerance, and given the religious beliefs of his parents, Dr Bergin considers that whilst further transfusion is desirable it can be deferred until such time as his haemoglobin count falls to 60 or below. 11 Dr Bergin says that the medical treatment being administered to Bernard will require further transfusions of blood products. It is not possible to predict when transfusion will be required, nor to predict how often transfusion will be required. 12 Bernard's parents are deeply religious and put great emphasis as Jehovah's Witnesses on worshipping the God of the Bible, Jehovah. They sincerely believe that God's law in the Bible prevents them from consenting to a blood transfusion both for themselves and for their son. They believe that blood is sacred and agreeing to accept a blood transfusion is to break God's law in Acts 15:28-29, to "abstain from blood." 13 Bernard's parents tendered a number of blood myth busted circulars arguing that bacterial contamination, incompatibility reaction and transfusion-related acute lung injury are still the most common and dangerous complications of blood transfusion. Another argument is that there is emerging evidence that patients transfused after surgery stay longer in hospital and have more infections following discharge. It is argued that current emerging evidence shows that patients who receive blood transfusions are at greater risk of transfusion associated adverse outcomes such as infection, kidney failure, lung injury or death. It is argued that pre-donated autologous transfusion is not risk free and there are a variety of adverse events associated with the practice. 14 Bernard's mother, who appears before me in person today, Bernard's father being unable to leave in case Bernard would fret, has tendered a statement to which I have already referred in relation to the history of the symptoms that Bernard exhibited. Bernard's mother in addition to the statement told me that she and her husband love Bernard dearly and while they oppose his being transfused, if the court makes an order allowing transfusion, they will comply and assist in any way they can in Bernard's treatment. 15 The Director General seeks to invoke the parens patriae jurisdiction of the court. I had the occasion to consider that jurisdiction in Royal Alexandra Hospital v Joseph & Ors [2005] NSWSC 422 in which I made mention of DoCS v Y [1999] NSWSC 644; Director General of the Department of Community Services v "BB" [1999] NSWSC 1169; Re Jessica [2001] NSWSC 1207 and Re Heather [2003] NSWSC 532. 16 To those decisions can be added Director of Community Services - re "Matthew" [2005] NSWSC 132; Royal Alexandra Hospital for Children trading as Children's Hospital at Westmead v J & Ors [2005] NSWSC 465; (2005) 33 Fam LR 448; Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193 and Re Paul [2008] NSWSC 960. 17 There is ample authority for the proposition that under the parens patriae jurisdiction the court may supplant parental right and authorize hospital staff to perform a transfusion upon a child. What is critical is the welfare and best interests of the child. 18 I appreciate that Bernard's parents hold their religious view that transfusion is against the will of God, but in my view the medical evidence clearly indicates that Bernard is at risk unless he may be transfused from time to time as the need arises. In my view that is in his best interests. Bernard's mother does not oppose this course. But it is her strong wish, and that of her husband, that the number of transfusions administered to Bernard be minimised and avoided if at all medically possible without jeopardising Bernard's health. 19 The purpose of making an order granting general entitlement, subject to Dr Bergin's determination, or that of her substitutes if she is not available, that there is no alternative, and subject to the parents being advised of a transfusion, if that be possible, is to ensure that Bernard's treatment programme proceeds in an orderly fashion. That, in my view, is in the best interests of the child. It is not sufficient that the hospital waits until Bernard is in a critical condition and a medical practitioner decides to act as a matter of urgency under s 174 of the Children and Young Persons (Care and Protection) Act 1998. 20 In the last two authorities to which I have referred there has been some debate as to whether a child should be made a ward of court before the orders for transfusion are made. In Re Jules there was a high risk that the child in question would contract Hepatitis B from his mother. The parents had refused vaccination and had absconded with the child. In those circumstances, Brereton J thought it appropriate that an interim wardship order be made. In Re Paul, on the other hand, Hamilton J pointed out that parents in that case had co-operated with hospital authorities in relation to treatment, except in the one respect of opposition to transfusions as Jehovah's Witnesses. In face of that very different attitude of the parents, his Honour believed that an order for wardship was not necessary. 21 I hold a similar view. The evidence before me clearly indicates the co-operation of Bernard's parents with the medical authorities. 22 In Re Jules, Brereton J pointed out that this court now has a statutory regime similar to the parens patriae jurisdiction as the court now enjoys all the jurisdiction of the Family Court of Australia as a result of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), including its powers in relation to children. 23 Austin J in Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644 had said in an obiter dictum that the whole of the parens patriae jurisdiction with respect to wardship, custody and care of children was unaffected by the Family Law Act 1975 (Cth). 24 In Re Jules Brereton J was not called upon to determine whether that observation was correct because if in respect of children not already in the care, the jurisdiction of the court was affected by the referral of powers to the Commonwealth and the Commonwealth's exercise of those powers through the Family Law Act, the court enjoyed the jurisdiction to which I have referred. Hence, either because the parens patriae jurisdiction of this court survived unaffected by the referral of powers to the Commonwealth and Part 7 of the Family Law Act, or because this court shares with the Family Court the statutory equivalent of the parens patriae jurisdiction, the result is the same. 25 I am in the same position in this case and need not make a determination on the issue. I adopt the reasoning of Brereton J in Re Jules. 26 Notwithstanding the strong views taken by Bernard's parents in opposition to transfusions, I am of the view that the hospital should be authorised to administer a transfusion to Bernard if Dr Bergin or her substitutes is of the view that there is no alternative and the parents have been forewarned, if possible, of that event. 27 Not because Bernard's parents have not co-operated with hospital authorities, they have, but because the orders ought to make the parents' legal duties clear as Hamilton J pointed out in Re Paul, the orders should include the requirement that they bring Bernard for treatment by way of transfusion if required to do so by Dr Bergin or her substitutes. 28 I will make orders in terms of a draft reflecting these reasons to be prepared on behalf of the Director General of the Department of Community Services and Bernard's mother. ********** 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.