Sydney Children’s Hospital Network, The Application of [2018] NSWSC 1259

Supreme Court New South Wales

Medium Neutral Citation: Sydney Children's Hospital Network, The Application of [2018] NSWSC 1259 Hearing dates: 23 July 2018 Date of orders: 23 July 2018 Decision date: 23 July 2018 Jurisdiction: Equity - Duty List Before: Parker J Decision: At [12] Catchwords: COURTS – jurisdiction – parens patriae – power of court to consent to medical treatment of child – best interest of child – application in advance of the birth of unborn baby – unborn baby diagnosed in utero with serious cardiovascular condition – proposed treatment involves use of donor blood or donor blood products – parents subscribe to tenets of Jehovah's Witnesses religion Category: Principal judgment Parties: Sydney Children's Hospital Network (Applicant) Representation: Counsel: S Woods (Applicant)

Solicitors: NSW Ministry of Health (Applicant) File Number(s): 2018/223286 Publication restriction: Nil

Judgment – EX TEMPORE Revised and reissued 26 July 2018 1. This is an application in advance of the birth of an unborn baby for orders under the Court's parens patriae jurisdiction authorising an operation on that baby after birth. Orders have been made in the proceedings for the parties to be referred to by pseudonyms. The hospital at which it is proposed to carry out the operation is identified as "H". The unborn child is identified as "B". The child's mother is identified as "F" and its father as "M". If authorisation is granted, the hospital proposes that the operation will be conducted by a paediatric cardiothoracic surgeon identified as "W". F is in an advanced state of pregnancy with B who is expected to be born Monday 30 July. 2. B has been diagnosed in utero with the medical condition known as Transposition of the Great Arteries (TGA). As its name suggests, in this condition the aorta and the pulmonary artery are transposed. If not corrected, the condition will lead to B's death within a period of weeks or months of B's birth. 3. This condition is usually corrected by a medical operation known as an Arterial Switch Operation in the early neonatal period (that is, within a few days of birth). The surgery is a form of open heart surgery which, as its name suggests, involves each of the arteries in question being joined to the proper chambers of the heart. 4. The surgery is usually conducted with the assistance of cardiopulmonary bypass ("CPB") support. This support is provided with a machine which allows the heart and the lungs to function while the surgery is undertaken. Usually the machine is primed or stocked with donor blood and donor blood products to supplement the baby's supply of such products. Dr W has discussed the proposed surgery with F and M who, as B's parents, are its legal guardian. 5. The surgery carries risks but understandably F and M would both wish it to take place as a matter of principle. The difficulty is that F and M are practising Jehovah's Witnesses who are opposed on religious grounds to the use of donor blood or donor blood products. Owing to their religious beliefs F and M do not feel able to consent to the procedure being carried out if donor blood or donor blood products are to be used in the CPB machine. They have referred Dr W to a number of articles published in medical journals which they suggest indicate that so called bloodless cardiac surgery (by which is meant surgery which does not involve donor blood or donor blood products) is a possibility. 6. In an affidavit presented to the Court, Dr W has explained the reasons why the availability of donor blood and donor blood products is indicated. It is clear from the evidence before the Court that on the present state of medical knowledge and surgical capacity, restricting the surgery to bloodless surgery would impose an additional risk of an unfavourable outcome. In particular the evidence shows that a lack of donor blood or donor blood products during the period of the surgery may lead to instability of blood pressure and poor lung function, difficulty in stopping bleeding at the end of the surgery and may potentially lead to neurological injury manifesting itself later in life. 7. Dr W has consulted with medical experts at other Australian hospitals. An offer of referral was made which would have allowed the operation to be carried out elsewhere but F and M who live in Canberra have decided against this and wish the baby to be born at the designated hospital H. 8. Dr W and the other treating doctors are aware of the religious beliefs of F and M and propose to undertake the operation if authorised on the basis that the use of donor blood and donor blood products will be avoided if that is possible. But Dr W is not prepared to undertake the surgery unless he has the ability in the exercise of medical judgment in the course of carrying out the operation to resort to donor blood or donor blood products. 9. F and M are not parties to these proceedings but have been provided with copies of the summons and the affidavits put before the Court and it has been their choice not to appear to oppose the orders which are sought. The Court has been provided with an email setting out their views and referring to the medical articles to which I have already referred. 10. The Court acknowledges the importance to F and M of treating B in accordance with the tenets of the religion to which they adhere but the critical issue on an application such as this is what the court considers is in the best interests of B. Everyone agrees that the surgery is necessary to save B's life. In my judgment, to impose upon those charged with the responsibility of undertaking this delicate and difficult surgery restrictions in the way in which they can conduct the operation and in particular to restrict them in the use of indicated therapeutic aids such as donor blood and donor blood products is not in the best interests of B. 11. Accordingly, while acknowledging the concerns of F and M, the Court will make an order authorising the surgery to be carried out at the hospital H with donor blood and donor blood products being available to be used in accordance with the medical judgment of those carrying out the operation. 12. The orders of the Court are: 1. The Court authorises H (the Hospital) by their medical staff employed or retained for the purpose conditional upon the live birth of the unborn baby B, to perform on B the medical procedure known as an Arterial Switch Operation with cardiopulmonary bypass support using donor blood or donor blood products, and to undertake any associated intervention, care or treatment using such products as they (the medical staff) consider in the exercise of their medical judgment to be desirable or necessary. 2. The Court grants liberty to apply with respect to Order 1 to each of H (the Hospital), F (the mother of B) and M (the father of B).