TS & DS v Sydney Children's Hospital Network ("Mohammed's case") [2012] NSWSC 1609

Supreme Court New South Wales

Medium Neutral Citation: TS & DS v Sydney Children's Hospital Network ("Mohammed's case") [2012] NSWSC 1609 Hearing dates: 21 December 2012 Decision date: 24 December 2012 Jurisdiction: Common Law Before: Garling J Decision: Application dismissed Catchwords: Courts - Jurisdiction - Parens Patriae - Medical Treatment of Terminally Ill child - Matters to be considered by the Court in exercise of its jurisdiction - Best interests of the Child Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Uniform Civil Procedure Rules 2005 Cases Cited: Breen v Williams [1996] HCA 57; (1996) 186 CLR 71 MAW v Western Sydney Area Health Service [2000] NSWSC 358, (1999) 49 NSWLR 231 Northridge v Central Sydney Area Health Service [2000] NSWSC 1241; (2000) 50 NSWLR 549 Re B (A Minor) (Wardship: Sterilization) [1988] 1 AC 199 Re C (a minor) (Wardship: Medical Treatment) [1989] 2 All ER 782 Re F (Mental Patient: Sterilization) [1990] 2 AC 1 Re J (a Minor)(Wardship: Medical Treatment) [1990] 3 All ER 930 Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479 Category: Principal judgment Parties: TS and DS Sydney Childrens Hospital Network File Number(s): 2012/00398635 Publication restriction: Publication of the names and identities of the applicants and their son is restricted so that they can only be identified by the pseudonyms contained in the judgment.

Judgment 1At 3.10pm on Friday 21 December 2012, TS made telephone contact with me as the Duty Judge, on behalf of himself and his wife DS, to urgently seek an order of the Court, compelling the medical staff at The Children's Hospital at Westmead ("the Hospital") to treat his seriously ill 9 month old son, Mohammed, by means of mechanical ventilation, rather than by treating him only with oxygen delivered through continuous positive airway pressure ("CPAP"). Mohammed is and has been since June 2012, an in-patient in the Hunter Baillie Ward at the Hospital. 2Initially, contact was made by me with the Medical Director of the Intensive Care Unit, Dr Stephen Jacobe in order to establish the degree of urgency which attended Mohammed's condition and, as a consequence, the hearing of the application. It was clear that there was a high degree of urgency. I then contacted Dr Glen Farrow, the Director of Clinical Governance for the Hospital, whom I was told by Dr Jacobe was the responsible member of staff of the Hospital, to ascertain whether the Hospital was in a position to deal urgently with the application. He agreed that it was. 3Because Mohammed's parents, TS & DS, were then at the Hospital, as were the treating doctors and all clinical records relating to Mohammed, arrangements were made to hold an urgent sitting of the Court in appropriate facilities at the Hospital. The hearing commenced at 6.30pm on 21 December at the Hospital at Westmead, and continued until 9pm that evening at which time I reserved my decision until Monday 24 December 2012. At the suggestion of Dr Farrow, and with the consent of all present, I made an appropriate interlocutory order in the following terms: "until further order, the Sydney Childrens Hospital Network by its employees, servants and agents are to take all necessary steps including mechanical ventilation when clinically required for the treatment of the respiratory condition of, and the maintenance of life of, Mohammed" 4At the conclusion of the hearing, with the consent of all parties, I visited Mohammed in the Hunter Baillie Ward where I was able to observe for myself his condition, the extent of his treatment which was then being provided and his ability to interact with his mother, DS. 5It is clear that the necessity to deliver this judgment as quickly as is possible will result in reasons for judgment which are not as extensive as they otherwise might be, and less felicitous of expression than if more time were available.