HEALTH LAW – TREATMENT AND CARE OF PERSONS WITH IMPAIRED CAPACITY
– where the respondent is a 12-year-old child –
where the respondent
is 10 weeks pregnant – where the applicant is the treating health service
Source
Original judgment source is linked above.
Catchwords
HEALTH LAW – TREATMENT AND CARE OF PERSONS WITH IMPAIRED CAPACITY– where the respondent is a 12-year-old child –where the respondentis 10 weeks pregnant – where the applicant is the treating health service– where the applicantseeks orders permitting its servants and agents toterminate the respondent’s pregnancy – where the respondent wishesto terminate the pregnancy – whether the respondent is Gillick competentand able to consent to the termination of the pregnancy– whether thetermination of the pregnancy is in the respondent’s bestinterestsHuman Rights Act 2019 (Qld)Termination of Pregnancy Act 2018 (Qld), s. 5Gillick v WestNorfolk and Wisbech Area Health Authority [1985] UKHL 7[1986] AC 112, followedSecretary, Department of Health and Community Services v JWB and SMB[1992] HCA 15(1992) 175 CLR 218, followed
Judgment (8 paragraphs)
[1]
Crown Law as amicus curae (on behalf of the Attorney-General (Queensland))
[2]
[1] The applicant in this matter is a hospital. The respondent is a 12-year, eight-and-a-half-month-old child who will be identified in the proceeding by the capital letter G. G appears by her litigation guardian who is her mother. Her mother has been helpfully represented today by lawyers from Caxton Legal Service. G is present in the courtroom for the hearing. Ms Robb KC appears instructed by Crown Law as amicus curae and I express gratitude for her doing so. Ms Hughes of counsel has also appeared as amicus curae on behalf of the Attorney-General of Queensland and has helpfully provided submissions addressing human rights issues that arise in the matter and I thank her as well. Thank you also to Caxton Legal Service for their assistance.
[2] The application concerns first whether G is Gillick competent and, second, if G is not Gillick competent, whether the Court authorises the termination of G's pregnancy.
[3]
[3] The basic background to the application is this. On 2 July 2025, G attended on her local doctor because her period was 14 days late; pregnancy was suspected. A blood test confirmed G's pregnancy. A scan on 3 July 2025 confirmed the pregnancy at five weeks and six days gestation.
[4] Today she is either one day short of being 10 weeks pregnant or is 10 weeks pregnant.
[5] When the positive pregnancy test was obtained, G was referred to the applicant. She came to the applicant at approximately seven weeks pregnant and she was seeking a termination of the pregnancy.
[6] G is a child in the custody of the State. She lives in residential care and has done so since October 2024. She is subject to an interim child protection order and a temporary custody order. She, sadly, has a child protection history record going back to 2012, which is the year of her birth. Her parents presently remain her legal guardians. G has suffered significant domestic and family violence in her home and her father is the subject of a domestic violence order. I have material that suggests G's mother has mental health and substance misuse issues and it appears that neither parent has made too much progress that would enable G to return safely home, at least for the moment.
[7] G's mother is aware of the pregnancy and, at least initially, was unsupportive of her daughter, texting her to the effect that she had shamed the family. That, according to evidence from the mother in an affidavit, seems to have been a guttural reaction to her child's pregnancy and she says now that she is fully supportive of her daughter and willing to help her in whatever way she can. It is unfortunate that that was the mother's initial reaction because, as I understand it, she had previously denied G's requested access to contraceptives. G was at the time, and still is, interested in having an Implanon administered.
[8] G's mother is supportive of G's pregnancy being terminated. I have material, which I received this morning, in the form of the mother's affidavit disclosing that G's father is apparently aware of the pregnancy. He has apparently been informed of that through Child Safety.
[9] The father of the baby, who is reportedly a 16-year-old boy, is unaware of the pregnancy and G is not presently in contact with him because he annoyed her. G would not provide further details but she has advised that she has no present safety concerns regarding the father of the baby.
[10] G has been clear at all times during her consultations with medical staff that she does not wish to continue with the pregnancy. She is aware of the alternatives, including continuing with the pregnancy with a view to parenting or adoption. G's views on continuing the pregnancy have included that she did not wish to be out in public pregnant at a young age attracting attention, that she was preoccupied with the idea of the pain of childbirth and that she cannot even look after herself, giving an example of not being able to get out of bed before 8.30am.
[4]
[14] Termination of the pregnancy is governed by the Termination of Pregnancy Act 2018 (Qld), particularly, in this case, section 5. However, the Court's intervention has been sought in this proceeding because the applicant has a concern as to whether G is Gillick competent to consent to the termination of pregnancy; that is, able to give informed consent to the contemplated medical procedure. The underlying question concerning informed consent requires the Court to consider whether G has reached a sufficient understanding and intelligence to enable her to fully understand what is proposed.
[15] Medical staff of the applicant have expressed their opinion that G is not Gillick competent, not for all purposes, but in relation to consent to a surgical termination of the pregnancy. If G is not Gillick competent to consent to that procedure then there is a risk that the performance of a termination of the pregnancy, absent the Court making appropriate orders, would be unlawful, either as an assault or a trespass upon G.
[16] A termination of pregnancy is the type of procedure in respect of which parents are not able to provide required consent on behalf of the child. There are lesser procedures where parents can give consent for children to undergo or not undergo, but it is generally accepted that a termination of pregnancy is not of that type.
[17] If, therefore, G is not Gillick competent to consent to a termination of the pregnancy, the parens patriae - I will just refer to it as the parental jurisdiction - of this Court is enlivened, and the termination of G's pregnancy can be authorised by the Court if the Court considers that to be in the best interests of G. But if G is Gillick competent, then it is for her to decide whether she consents to the termination of her pregnancy, which is otherwise permissible under section 5 of the Termination of Pregnancy Act 2018 (Qld).
[5]
[19] The relevant principles are discussed in the case of Gillick v West Norfolk and Wisbech Area Health Authority[1985] UKHL 7; [1986] AC 112, and Marion's Case, which is Secretary, Department of Health and Community Services v JWB and SMB[1992] HCA 15; (1992) 175 CLR 218 at pages 236 to 238.
[20] In Australia, in Marion's Case, the High Court recognised that a minor is, according to the Gillick principle, capable of giving informed consent when she achieves a sufficient understanding and intelligence to enable her to fully understand what is proposed. That is a question of fact. It depends on the rate of development of each individual. I am going to say something more about the background circumstances, but I should note that I will necessarily be less detailed than I otherwise would be in providing particulars of G, her family, and the circumstances relevant to the assessment of Gillick competence because the matter involves a child, so as to protect the child.
[21] As I said, G is 12 years, eight and a half months old. She has living parents but, as I have mentioned, she is in the custody of the State. Her young life has been marred by domestic violence. Her relationship with her parents, at least from time to time, is poor. She has a younger sibling. She is enrolled in school but has not been attending of late. She performs acceptably at school. She has not been diagnosed with any mental or physical disabilities or impairments.
[22] I have evidence from four witnesses for the applicant, (1) a senior social worker, (2) an authorised officer under the Child Protection Act 1999 (Qld) with qualifications in social work, (3) a medical doctor with specialities in sexual and reproductive health, obstetrics and gynaecology, and (4) a paediatrician. I have carefully read the treating practitioners' detailed notes of their various interactions with G.
[6]
[28] Then it turns to what is in the best interest of the child. There are real risks to G associated with the pregnancy continuing, and I take the following matters into account in exercising the Court's parental jurisdiction.
[29] First, the medical evidence shows that, whilst capable of conceiving, it is unlikely that G could carry the baby to term without a grave risk to her own and the baby's physical health.
[30] Second, G does not have the emotional maturity to deal with a pregnancy or motherhood. It would have considerable psychosocial impacts on her. It may exacerbate her substance abuse issues and could adversely affect her mental health.
[31] Third, the material demonstrates that she does not have a family presently willing to support her with the pregnancy or the choices that would have to be made if the baby was born. And as I have commented, there is unfortunately - in light of the history of G - a risk that the baby would be removed, in any event.
[32] The fourth consideration is that I am giving very significant weight to G's wishes. Whilst I have concluded that she is not Gillick competent to make a decision about the surgical termination of the pregnancy, it is only that I have a very small amount of doubt about that I am exercising the Court's parental jurisdiction. I do think that in a general way, although not to the level that the law requires, she is capable of making this decision for herself. As mentioned, there are two types of termination of pregnancy available, medical and surgical. Each of them has their risks. Both are available options for G at the present time. She has expressed a strong preference for a surgical intervention. Her main concern appears to be pain related, but her treating doctors support her choice in the circumstances, and I agree that that choice and support of her choice properly reflects a trauma-informed approach to her care.
[7]
[33] I have had regard to the submissions about the impact of the Human Rights Act 2019 (Qld) on the exercise of the jurisdiction, which is enlivened, and it does not seem to me ultimately that there is anything in the consideration of what is in the best interests of the child that would conflict in any way with human rights related issues. I do not need to formally determine exactly how the Human Rights Act 2019 (Qld) might apply because the decision I am making I consider is consistent with human rights.
[8]
[34] I am going to make declarations and orders in terms of the originating application. I am going to make orders suppressing the identity of the child and others known to her in a way that will ensure that her confidentiality is maintained. It is of course the usual rule that all court proceedings should be conducted in public, but here there is a paramount duty to the interests of the child and that makes those orders appropriate.
Parties
Applicant/Plaintiff:
A Hospital and Health Service
Respondent/Defendant:
G [2025] QSC 232
Legislation Cited (3)
Rights Act 2019
Pregnancy Act 2018
Protection Act 1999
Cases Cited (1)
(1992) 175 CLR 218
[11] In terms of a termination of pregnancy, G has described having some understanding of the termination options, of the methods of terminations. G has expressed concern about cramping pain associated with medical termination, which might be exacerbated because she has previously had a stomach ulcer, and she has expressed that she wants a surgical termination.
[12] In terms of G's mental health, it has appeared to medical staff that G has been suppressing her feelings and then lashing out. G says she feels more able to cope with the termination than having a baby. She reportedly continues to vape, smoke cigarettes and cannabis when available and drink alcohol. She has reportedly ceased chroming. She has some history of absconding from care but, at least on some of those occasions, has absconded back to her mother, which is obviously a lesser concern than absconding generally out into the public.
[13] There does appear to be a real risk that even if G wished to continue with the pregnancy with a view to parenting the baby, the baby might in fact be removed from her care once born, which would risk further traumatisation of G. G's treating medical practitioners support the request for a termination of the pregnancy.
[18] Therefore, I will first determine whether G is Gillick competent. If she is, then it is not appropriate for the Court to exercise its parental jurisdiction. The jurisdiction is only properly exercised to protect children or others who are unable to look after their own interests.
[23] There are matters that have caused the applicant to conclude that G is not Gillick competent to consent to a termination of pregnancy. The first is, of course, that G is only 12 years of age, although she presented to medical staff as mature for her age. The obstetrician has consulted with G since 8 July 2025. G's options have been explained in detail to her, and G has been consistent in expressing that she does not wish to have a baby at her age. She had in fact been teaching herself about termination options online prior to the first appointment with the obstetrician. In her first consultation with the obstetrician, G asked appropriate questions about required blood tests and anaesthesia. After the second consultation, that doctor formed the view that G has appropriate health literacy for someone of her age and has sufficient capacity to consent to her preferred contraceptive, but that she is unable to sufficiently retain information about the termination of pregnancy procedures and particularly the associated risks and therefore does not meet the threshold of capacity for consent to the procedure.
[24] This opinion appeared to be strongly based on a comment by G during the second appointment to the effect that, "I am listening. But as I hear what you are saying, it disappears." Thus, the concern seemed to be that G did not have a comprehensive retention of understanding of the risks associated with a termination that would allow her to make an informed decision about whether to undergo such a procedure.
[25] I have asked G to give evidence, albeit unsworn evidence, before me today. Ms Robb KC has asked G a series of questions, and I too have asked G a series of questions, to attempt to ascertain whether at this point in time she properly understands the options available to her and the risks associated with each of those options so that she can provide informed consent as to her medical treatment moving forward.
[26] The options available to her are, first, to have and to keep the baby. Second, she could have the baby and then surrender it for adoption or find some family who might be able to care for the baby. Her third option is a termination of the pregnancy. There are upsides and downsides to all of those options. In my view, G has a good understanding of those options available to her and she has a general understanding of the risks associated with a termination of the pregnancy, in particular, a surgical termination of the pregnancy. I think that she, as the medical staff said, does present as mature. I think she is answering the questions honestly and to the best of her ability in what must be a very overwhelming environment for her. She certainly thinks she has the maturity to consider the consequences of a decision about the pregnancy for herself. I agree with the medical staff that the application does really distil down to the concern about G's understanding of the risks associated with the surgical termination.
[27] Whilst G does have some general understanding of the risks associated with a termination, I am ultimately not satisfied that G is Gillick competent and, accordingly, I do intend to exercise the Court's parental jurisdiction. I am mindful that Gillick competence can fluctuate from time to time. But I do think there needs to be, in this type of case, a high degree of certainty about the competence of the child in order to conclude Gillick competence and because I have some doubt about it, I am going to exercise the Court's parental jurisdiction.