HEALTH LAW – TREATMENT AND CARE OF PERSONS WITH IMPAIRED CAPACITY
– where the respondent is an 11 year old child –
where the
respondent is eight weeks pregnant – where the applicant seeks orders
Source
Original judgment source is linked above.
Catchwords
HEALTH LAW – TREATMENT AND CARE OF PERSONS WITH IMPAIRED CAPACITY– where the respondent is an 11 year old child –where therespondent is eight weeks pregnant – where the applicant seeks orderspermitting the staff of the applicant to terminatethe respondent’spregnancy – whether the respondent is Gillick competent – whetherthe termination of the pregnancyis in the respondent’s best interestsHuman Rights Act 2019 (Qld) s 15, s 16, s 17(c), s 25(a), s26(2), s 29(1), s 37, s 106Termination of Pregnancy Act 2018 (Qld) s 5Central QueenslandHospital and Health Services v Q [2017] 1 Qd R 87[2016] QCS 89,consideredGillick v West Norfolk Area Health Authority [1985] UKHL 7[1986] AC 112,citedK v T [1983] 1 Qd R 396, citedSecretary Department of
Health and Community Services v JWB and SMB (1992) 175 CLR 218
[1992] HCA
15, cited
State of Queensland v B [2008] 2 Qd R 562
[2008] QSC 231,
considered
State of Queensland v Nolan [2002] 1 Qd R 454
[2001] QSC
174, cited
Judgment (49 paragraphs)
[1]
R H Berry for the Attorney-General as amicus curiae
[2]
Crown Law for the Attorney-General as amicus curiae
[3]
[1] This is an application brought by a Hospital and Health Service seeking orders in respect of a medical treatment, being a termination of the pregnancy of a minor who is referred to as C, or the respondent, in these reasons.
[2] Originally, the application also sought orders and declarations in respect of the implantation of Implanon NXT, being a form of contraceptive.
[3] It has been agreed in the course of submissions that the application in respect of the authorisation sought to implant Implanon NXT be adjourned to a date to be fixed. This will provide all parties with the opportunity to address any legal and factual issues which have been identified in the submissions both orally and in writing. In particular, I note the issues that have been raised in the submissions on points of law by Ms Robb as amicus curiae which, in relation to this issue, require further consideration.
[4] The application was heard on an urgent basis, and brief reasons were delivered ex tempore given the time sensitivity of the options for the termination procedure. These reasons are consistent with and supplement the reasons delivered ex tempore.
[5] C is the respondent to the application and C's mother is her litigation guardian.
[6] Ms Robb has been appointed amicus curiae in respect of C's interests generally to assist the Court.
[7] Crown Law and Ms Berry on behalf of the Attorney-General have been appointed amicus curiae in respect of the intersection of the exercise of the parens patriae jurisdiction and the Human Rights Act 2019 (Qld) (Human Rights Act).
[8] Affidavit material has been provided from:
[4]
(a) the treating paediatrician;
(b) the treating adolescent psychiatrist;
(c) the treating registered nurse; and
(d) the treating gynaecologist.
[5]
[9] The Court has had regard to all of this evidence and has been particularly assisted by the professional review of the issues undertaken in those affidavits.
[10] The issues for the Court are:
[6]
(a) Is C Gillick competent?
(b) If not, whether it is in the best interests of C to have a medical termination and/or a surgical termination?
[7]
[11] The second issue involves consideration of the Court's parens patriae jurisdiction.
[8]
[12] In respect of the threshold issue of whether the child, C, has sufficient capacity to provide informed consent, a minor is capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. This is consistent with the comments of the Court in Gillick v West Norfolk Area Health Authority.[1] This approach was approved by the High Court in Secretary Department of Health and Community Services v JWB and SMB.[2] This case is often referred to as Marion's case.
[13] If a child is not Gillick competent to give consent to the termination of a pregnancy, there is a risk that the medical procedure may be an assault or trespass to the person and unlawful in the absence of a court making appropriate orders.
[14] Where a child is incapable of giving valid consent, a child's parents, as guardians, may consent to most ordinary medical treatments on behalf of their child. However, the cases recognise that there is a special category of procedures for which a parent's consent on behalf of a child is insufficient.
[15] A termination of pregnancy is a type of medical procedure in respect of which parents are unable to provide the required consent on behalf of the child. This is consistent with the decision in Central Queensland Hospital and Health Service v Q,[3] citing with approval the earlier decision of Margaret Wilson J in State of Queensland v B.[4] However, I do note that the views of the parents of a child may be one of the factors that the Court takes into account in reaching a decision.
[16] To preserve the confidentiality of the child, it is necessary for me to refer to the particular facts and circumstances in more general terms than I usually would. However, I do specifically note that I have considered the specific details of the child C, her family, and the circumstances relevant to the assessment of her Gillick competence contained in the evidence.
[17] C is 11 years old. On the question of Gillick competency, I am most assisted by the decisions of this Court of Margaret Wilson J in State of Queensland v B involving a 12 year old girl, and McMeekin J in which also involved a 12 year old girl.
[9]
"B is only 12 years old. It seems unlikely that a 12 year old child of average intelligence and maturity could fully understand the significance of a termination of pregnancy, including the immediate and long term risks to herself as the mother of the baby. But I am satisfied that B is of less than average intelligence and maturity ... ...[h]er intellect is in the very low normal range, possibly even lower."[7]
[10]
[20] McMeekin J in Central Queensland Hospital and Health Services v Q observed:
[11]
"As to Q's capacity to give consent I record that in my view Q has a very good understanding of the risks attendant on the procedures that the doctors have spoken of. That appears from the discussions that the medical specialists have had with her as recounted in the various reports tendered. But there is more to the issue than those risks, important though they are. The principal question mark is over her ability to comprehend the long term consequences of a decision not to terminate ... it is difficult to accept that the child can make an 'informed decision' if the consequences of the alternative choice - not terminating- are not fully apparent to her."[8]
[12]
"The fact is that very few 12 year olds could have the maturity to comprehend the impact a decision like this might have on them in the longer term."[9]
[13]
[22] In the circumstances his Honour concluded it was appropriate to invoke the parens patriae jurisdiction of the Court.
[23] I note that age is a consideration, but it is not determinative. Each case is to be considered on its own facts.
[24] Submissions made on behalf of the applicant identify that, in assessing whether a child evidences the necessary understanding, the Court will consider the following factors:
[14]
(a) the child's insight into their condition;
(b) their understanding of the nature of the treatment and its effects;
(c) their understanding of the consequences and potential side effects of the treatment; and
(d) their ability to comprehend and retain information.
[15]
[25] The applicant submits that, based on the evidence of the treating medical team, the respondent has some understanding of her pregnancy. However, there is some concern as to whether that is only a superficial understanding. The evidence records that the respondent understands that there is a "baby in her tummy", and she broadly comprehends the difference between being pregnant and not being pregnant. Her understanding at a very general level is that a termination will mean that she is "not pregnant".
[26] In particular, I note the reference in the treating adolescent psychiatrist's notes that the respondent has demonstrated minimal understanding of the reasons for concern raised by the school, her mother, and the hospital, or the implications of a termination or its alternative - that is maintaining the pregnancy.
[27] It is also submitted on behalf of the applicant that the respondent has, on occasion, demonstrated some understanding of the process of termination of pregnancy. This includes the stated preference of the respondent for the medical termination described as being "taking the medicine".
[28] However, it is also recognised that the respondent's understanding and comprehension appears transient. This is evident from the evidence of the medical practitioners who record that only a day after the initial appointment where the matters were explained to her in simple language, the respondent was unable to recall what had previously been discussed regarding the two different termination procedures.
[29] It is also recorded by the treating paediatrician that the respondent was abnormally disengaged and displayed behaviours that would be associated with a younger child. This tends to support the respondent being emotionally and psychologically immature.
[30] Further, in the interview with the treating adolescent psychiatrist, when the respondent was asked about the information that she had received about the termination procedure, the respondent just shrugged. While that may be a common response of young people to a question being asked, it is of some concern in the current circumstances as to whether the respondent actually understood what was being asked and explained to her.
[31] Both the treating paediatrician and the treating adolescent psychiatrist note in the affidavit material that there are some concerns as to whether the respondent has some underlying cognitive deficits which impact on her ability to comprehend and retain information. This is relevant to whether the respondent is able to provide informed consent.
[16]
Whether it is in the best interests of C to have a medical termination and/or surgical termination?
[17]
[38] The Supreme Court's parens patriae jurisdiction is described in the State of Queensland v Nolan by Chesterman J as follows:
[18]
"The jurisdiction appealed to is that which was formally vested in the Sovereign but was transferred in centuries past to the Lord Chancellor and from him personally to the Courts of Chancery and then to those courts which, like the Supreme Court, exercise the jurisdiction of that court. It is exercised to protect the person and the property of subjects, particularly children who are unable to look after their own interests. The court has a wide power in relation to the welfare of infants. The dominant factor in the exercise of the jurisdiction is always what is in the best interests of the child in question. In a passage approved by Brennan J in Marion's Case... it was described by Lord Esher MR in R v Gyngall[1893] UKLawRpKQB 95; [1893] 2 QB 232 at 241:
[19]
'The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in a manner in which a wise, affectionate, and careful parent would act for the welfare of the child.'
[20]
The power is to be exercised for the protection of those whose plight enlivens it."[10]
[21]
[39] A more recent development has been the emergence of the potential for intersection between the parens patriae jurisdiction and the Human Rights Act. I have received submissions on behalf of the Attorney-General, appearing as amicus curiae in respect of this application, which have been of considerable assistance.
[40] The submissions on behalf of the Attorney-General note that the issue is not settled with respect to the potential application of the Human Rights Act in this proceeding. However, it is submitted that whatever the correct position may be, it does not significantly alter the Court's task. That is, that when exercising the parens patriae jurisdiction, the Court's duty continues to be the protection of the child and the paramount consideration remains the best interests of the child.
[41] Leaving aside the question of whether there is direct application of the human rights under the Human Rights Act for the purpose of the proceeding, it is also relevant to consider what human rights may arise and give consideration to those as informing the exercise of the parens patriae jurisdiction in any event.
[42] It is evident from the cases that many of the considerations which arise under the Human Rights Act arise in respect of the exercise of the jurisdiction.
[43] The submissions on behalf of the Attorney-General recognise that, in a human rights context, an assessment of a child's best interests must include respect for the child's right to express his or her views freely, and their views must be given due weight according to their age and maturity. Informed by this right, I gave the opportunity to the respondent to be able to express her views if she desired to do so. Whilst she did not do so in the course of the hearing, I do have the benefit of her views which have been expressed in multiple interviews and meetings with the treating medical professionals.
[22]
"A medical practitioner may perform a termination on a woman who is not more than 22 weeks pregnant."
[23]
[47] I am assisted by the submissions provided by Ms Robb as to the reference to the Explanatory Notes to the Termination of Pregnancy Bill 2018 that confirms the intention of Parliament to preserve the status of the law with respect to consent to medical treatment and consent to medical treatment for minors:
[24]
"The QLRC's recommendations are not intended to affect the laws that govern consent to medical treatment, substitute decision-making for adults with impaired capacity, consent to medical treatment for minors or the regulation of health practitioners, public hospitals and health services and licenced private health facilities."[12]
[25]
[48] Specifically, the Act makes no provision with respect to consent, so the common law requirements for establishing consent for surgical and medical treatment, and the common law requirements specific to consent to medical treatment for minors, continue to apply. This is reflected in the Explanatory Notes as follows:
[26]
"... the Bill does not include any express requirements about obtaining consent and the usual requirements under the general law about consent for surgical or medical treatment continue to operate and apply to terminations performed under the Bill.
[27]
... In some circumstances, a child or young person under 18 years can give consent to surgical or medical treatment if they have the capacity to do so. A young person is capable of giving consent if they have sufficient intelligence and maturity to understand the nature and consequences of the proposed medical treatment. A child who does not have such capacity to consent is unable to validly consent to medical treatment. While in some circumstances the parent of a child who does not have the capacity to consent may consent to medical treatment on the child's behalf, current Queensland law considers consent to termination of pregnancy outside the scope of this parental decision making authority. This means an order by the Supreme Court in relation to a termination is required. In making such an order, the court must act in the best interests of the pregnant child. Treatment in the absence of consent may give rise to civil or criminal liability, for example an assault."[13]
[28]
[49] In the current circumstances, that gives rise to the potential exercise of the parens patriae jurisdiction. The submissions on behalf of the Attorney-General which assist the Court on the human rights issues that may be relevant to the current application recognise that the Court's function is to decide whether the authorisation of a termination of pregnancy is in C's best interest.
[50] Further, it is submitted that, in performing this function, the Court is to identify any human rights relevant to this function and weigh any competing considerations and their impact on C's human rights. The written submissions helpfully identify the various rights under the Human Rights Act which may be relevant to the current considerations, including that every child has the right, without discrimination, to the protection that is needed by the child and is in the child's best interests because of being a child.[14]
[51] Other relevant rights include:
[29]
(a) the right to recognition and equality before the law;
(b) the right to life;
(c) the right to be free from medical treatment without full free and informed consent;
(d) the right not to have privacy interfered with unlawfully or arbitrarily, noting that the human rights concept of privacy extends to mental and bodily integrity;
(e) the right to security of person; and
(f) the right of access to health services without discrimination, which includes access to sexual and reproductive health services.[15]
[30]
[52] Consideration of these rights is relevant to the various factors which the Court is to consider in determining whether it is in C's best interests to grant the orders sought.
[53] The interaction of these various factors, including considerations of these rights, needs to be balanced. For example, a finding that C lacks capacity to make a decision about the termination impacts upon her right to be recognised as a person before the law, but equally this needs to be balanced against her best interests, and particularly so in a circumstance where the Court has found that she lacks capacity to make that choice. There is also the practical reality that the procedure being considered will involve some level of pain or distress and this would have a corresponding interference with her mental and bodily integrity. There may also be an impact on her right to privacy. Again, the physical and mental risks need to be balanced against the impact upon that right.
[54] The balancing act is also evident from the evidence of each of the doctors, being the treating gynaecologist, paediatrician and adolescent psychiatrist. The overwhelming medical evidence is that the risks involved in continuing C's pregnancy are higher than the risks involved in termination.
[55] Perhaps put more clearly, while the termination of C's pregnancy may interfere with C's mental and bodily integrity, that is likely to be to a far lesser extent than the continuation of the pregnancy.
[56] What is apparent from a consideration of these various human rights is that the Court needs to take into account the particular circumstances of the individual child and to make a decision and an assessment of the child's best interests.
[57] This includes giving due weight to C's views, taking into account her age and level of maturity, but also the medical evidence. It is acknowledged that the evidence before the Court is that C has repeatedly expressed the view that she does not want to continue with the pregnancy. C's mother has also expressed a clear preference for C to undergo a termination of her pregnancy. On only one occasion has C indicated a view where she expressed that she "did not know".
[58] It is also recognised that the authorisation of a termination may promote C's right of access to health services. This is a factor that may be relevant to the overall considerations, as the consequence is that any impact on her mental and bodily integrity and her right not to receive medical treatment without consent may be reduced accordingly in the balancing exercise.
[31]
(a) the increased physical risk to the respondent by continuing with the pregnancy; and
(b) the increased mental or psychological risks of continuing with the pregnancy.
[32]
[71] This is balanced against the risks and impacts of the termination procedures themselves. In exercising the parens patriae jurisdiction of the Court, I am satisfied that it is appropriate to make an order permitting the respondent to undergo, and the applicant's servants and agents to be permitted to perform, the termination of the pregnancy by the administration of the drugs and/or the surgical operation. It is proposed in the order that the procedure be performed on or before [a specified date] 2025. This is consistent with the medical evidence.
[72] Over the course of the hearing I made various orders for the suppression of the identity of C and also for the suppression and restriction of the court file, the transcript, and the reasons for decision. The usual rule is that proceedings in a court should be conducted in public but that should give way in certain circumstances to what is in the best interests of a child. This was recognised by Justice McMeekin in Central Queensland Hospital Services v Q,[16] and I take into account the relevant authorities referred to by his Honour in that decision.[17]
[73] I am satisfied in the circumstances that it is necessary in the interests of the welfare of the respondent that her identity and that of her mother be suppressed, and also that for those undertaking the medical procedure, the applicant, and the associated hospital.
[74] It is necessary to have an order in a form to safeguard the identity of the respondent and any circumstances which may give rise to her identity being known. The hearing proceeded in open court, but I was mindful of the fact that there were no other parties present. This is recognition that these proceedings are dealt with in the usual Supreme Court jurisdiction subject to the necessary restrictions.
[75] In the circumstances, I consider that the order that was made on the date of the hearing protects the various interests to the relevant and necessary extent, including protection of the court file and the transcript of the hearing.
[76] These reasons reflect those given ex tempore and have been published so that there can be some transparency on the Court's reasoning process at a later date. These reasons de-identify the parties to the proceedings and the various medical professionals referred to in these reasons, and any other identifying factors.
[18] Before considering the particular facts relevant to this case, I will make some comments about the approach in those cases. Both of those cases were before the Termination of Pregnancy Act 2018 (Qld) was in force and involved some more difficult considerations.
[19] In respect of Gillick competency, Margaret Wilson J in State of Queensland v B recognised:
[32] It is apparent from the evidence that the respondent has some difficulties in recall after a relatively short period of time and also has a lack of understanding, other than a superficial understanding, of the various concepts involved. This may be impacted in part by other difficulties. However, for the purposes of this application, it is not necessary and there is insufficient information to make a definitive finding in relation to any cognitive deficiency.
[33] The treating adolescent psychiatrist does provide some evidence that the respondent may have low cognitive functioning, but has formed the view that there is no mental health issue which forms the basis of the respondent being unable to understand.
[34] Ultimately, it is for the Court to consider the evidence and undertake its own assessment of the respondent's competency. In the course of the hearing I sought to engage with the respondent and asked whether there was any further information that the respondent wanted to raise with the Court. Perhaps understandably, the respondent declined to do so and I can appreciate that this whole process would be rather daunting and stressful for one so young.
[35] However, I am to act on the evidence which is before me and that includes a comprehensive record of the various interactions between the medical professionals and the respondent.
[36] I also note the mother of the respondent's view in respect of the issue of consent. The mother is supportive of the process, and this is relevant at the second stage in relation to the exercise of the Court's jurisdiction, but I am also mindful of recognising that view in the Court undertaking the first step.
[37] In all of the circumstances, I am satisfied that the evidence supports the conclusion that C does not have Gillick competency. She has not achieved a sufficient understanding and intelligence to enable her to understand fully what is proposed regarding her options, including to terminate the pregnancy. Accordingly, it is appropriate for the Court to proceed to consider the exercise of its parens patriae jurisdiction as to whether to authorise the proposed termination of the respondent's pregnancy.
[44] It is also recognised that, in the exercise of the discretion under the parens patriae jurisdiction, consideration is usually given to the principle that an invasive medical treatment should only be authorised if it is the least restrictive option and that it strikes a fair balance between the benefits and harm to human rights. This is a factor which is relevant to the current application.
[45] Relevantly to the current considerations, the Human Rights Act does not alter the position that the parens patriae jurisdiction only extends to the child the subject of the proceeding and not to an unborn child. This is consistent with the earlier findings of this Court in K v T.[11] In addition, s 106 of the Human Rights Act expressly provides that nothing in the Act affects any law relating to termination of pregnancy.
[46] In this regard, I note that the Queensland Parliament has passed the Termination of Pregnancy Act 2018 and that it is applicable in the current circumstances, particularly s 5, that is:
[59] The balancing exercise, as I have recognised earlier, does not require a consideration of weighing against the competing right of an unborn child, consistent with the authority of K v T.
[60] Submissions on behalf of the applicant have also made reference to the evidence which is contained in the affidavits filed in support of the application. As indicated previously, the medical evidence is that the continuation of the pregnancy poses significant risks to the respondent's short and long term physical, mental and psychosocial wellbeing.
[61] The affidavit material includes the opinion, supported by relevant studies, that a pregnancy in an 11 year old carries additional risk for both the mother and the foetus. In particular, the treating gynaecologist refers to the increased incidence of hypertensive disorders of pregnancy and that they are more often complicated by pre-term birth and low birth weight infants. The medical evidence also assesses that the respondent has a substantial risk for both mental and psychosocial health and wellbeing if the pregnancy continues.
[62] This view is also shared by the treating adolescent psychiatrist who identifies some specific mental health risks in [31] of their affidavit. These risks appear to be substantial in the current circumstances. The affidavit material also exhibits relevant literature in this regard. The literature identifies an increased risk of depression and anxiety in adolescent pregnancy and parenthood. Further, the treating adolescent psychiatrist specifically notes that the respondent's specific risk of mental health consequences is likely impacted by her particular situation, which places the respondent at a much higher risk of mental ill health.
[63] The affidavit material also sets out in significant detail the two termination procedures available to the respondent, both a medical termination and a surgical termination. What is clear is that the respondent has indicated a preference for the medical termination, and that is the current recommendation of the medical professionals. However, if the respondent changes her preference between now and when the procedure is undertaken, or the circumstances are such that the medical recommendation is for a surgical termination, the authorisation sought is in relation to both a medical termination and a surgical termination. This enables the medical professionals to make ongoing assessments of the respondent's condition.
[64] It also enables the medical professionals to proceed with a medical termination and, if that is not entirely successful, then to proceed to a surgical termination if necessary. The material also sets out in detail the potential side effects and complications of the procedures. These have not been comprehensively explained to the respondent, who has been provided with some information about the two procedures. Given that she has a rather superficial understanding of the procedures, it is understandable that she has not engaged with the particular risks. Having found that she is not competent, in any event, that is a factor which is for the Court to consider in the overriding consideration of what is in the best interests of the child.
[65] The affidavit material also sets out the proposed treatment plan in considerable detail. This includes the respondent being admitted as an inpatient to the relevant hospital where she can be monitored and supported by specialists, paediatric nurses, and midwifery staff. It is also envisaged that she will have her own room and that the various professionals will work closely with the respondent to ensure appropriate family and cultural supports are in place.
[66] I also note on the evidence that, from a medical perspective, neither termination procedure is contraindicated. However, the treating gynaecologist does note in her affidavit that as the pregnancy progresses, the recommendation would be to provide a surgical termination given the increased likelihood of significant discomfort the later the medical termination is performed.
[67] It is recognised in the submissions provided that there is evidence that the respondent wishes to have a termination, that the respondent's mother supports her in that and wishes for that also, and that the clinical staff think it is in the respondent's best interests.
[68] In accordance with the authorities, the dominant factor in the exercise of the Supreme Court's parens patriae jurisdiction is always what is in the best interests of the child. The Court's parens patriae jurisdiction is in relation to the respondent, but not to her unborn child. This has been the clear position in Queensland since 1983.
[69] In this case, the overwhelming evidence and the views of both the respondent and the respondent's mother are that it is in the best interests of the child for the termination procedure to be authorised. I have reached the conclusion that it is in the best interests of the respondent to make an order which will facilitate the termination of her pregnancy.
[70] This takes into account a number of factors, including:
[77] In the circumstances, I consider that it is appropriate to declare that the termination of C's pregnancy by the therapeutic administration of the drugs Mifepristone and Misoprostol or by surgical operation is necessary having regard to her current and future physical, psychological and social circumstances, and is lawful.
[78] Further, it is appropriate to order that:
C is permitted to undergo, and the applicant, its servants and agents, are permitted to perform the termination of C's pregnancy in any associated medical procedure.
The administration of the said drugs or surgical operation as determined by the applicant, its servants and agents, is performed on or before 18 April 2025.
The application in respect of the authorisation to implant Implanon NXT be adjourned to a date to be fixed before Williams J.