Director General of the Department of Community Services v "BB"

Supreme Court of NSW|1999-11-19|Before: Santow J, McLelland J

INTRODUCTION 1 In relation to an infant of seven months "GG" with acute lymphoblastic leukaemia ("ALL") diagnosed on 2 November 1999, the director General of the Department of Community Services ("DOCS") seeks two orders. The first is an order allowing the Executive Director of the New Children's Hospital at Westmead ("the Hospital") to be authorised to render medical treatment, including the transfusion of blood or blood products and a reinfusion of the child's own blood. I will describe that as "order 1". 2 The second is an order that the Defendants, parents of baby "GG", comply with any reasonable direction given by the qualified staff of the Hospital as to treatment and attendance for treatment of "GG". I shall describe that as "order 2". 3 The parents I shall describe collectively as "BB", and the infant as "GG". I do so to preserve the confidentiality of the child's situation, being satisfied that this is necessary for the child's welfare. 4 "BB" are members of the Jehovah's Witnesses. Through their legal representatives and by affidavit, they have made clear that for deeply held religious reasons and also as a matter of civil liberty, they would be opposed to any form of blood transfusion or reinfusion of the child's own blood. It has been made clear that this opposition extends particularly to orders 1 and 2 in their present form. Without prejudice to that position, the Defendants have indicated that a form of order 1 modified to make it more precise and less onerous, being in the form appended to this judgment, would be less objectionable though still opposed. This is particularly insofar as it avoids any suggestion that authorisation is required for treatment not involving blood transfusions, which the parents fully support. They oppose order 2 because they see it as both unnecessary and as "stripping the parents of any right to have any input into the care of their child". 5 As to order 2, I have particularly noted the parent's devoted concern for their child and the fact that to date the parents have brought their child to a hospital when first there was concern about "GG's" health. They have fully co-operated in the treatment regime, though making absolutely clear their opposition to blood transfusions. I have given consideration to a modified form of order 2 that ensures the parents are consulted if available and which acknowledges that devoted concern. Furthermore, the order would come into operation only if there were a failure to comply with any reasonable direction. The Defendants' legal representatives still oppose such an order, but agree it is less objectionable in that modified form.

SALIENT FACTS 6 Baby "GG" was born 19 April 1999. On 2 November 1999 "GG" was diagnosed with Acute Lymphoblastic Leukemia ("ALL") and was admitted to The New Children's Hospital at Westmead. 7 Tests conducted on 3 November 1999 indicated that the child was at a "high risk of morbidity". 8 On 3 November 1999 Dr Peter Shaw, indicated to the Defendants that "GG" would need transfusions of blood and blood product if she was to be treated to the internationally recognised protocol for treatment of infant ALL. 9 The Defendants indicated that they would not give permission for such transfusions. The parents are Jehovah's Witnesses and would not consent to the blood transfusions. 10 On the morning of 4 November 1999 "GG" was in a critical condition and Dr Shaw decided that a blood transfusion should be performed. It was so performed. It is not in dispute that s20A of the Children (Care and Protection) Act 1987 authorised that medical treatment. This is on the basis of Dr Shaw's "opinion that it [was] necessary, as a matter of urgency, to carry out the treatment on the child in order to save the child's life or to prevent serious damage to the child's health". 11 DOCS became involved on 5 November 1999. 12 The Defendants have indicated to doctors treating their daughter that they would prefer each situation where transfusion may take place to be judged separately and that their expressed wishes in relation to transfusions only be overrode in emergency situations. 13 The treatment protocol established for "GG" does not allow for that kind of crisis management of her condition but rather provides a regime to avert such emergency situations where possible. 14 Platelet (a blood component) transfusions are a necessary part of the preventative medicine involved in the protocol. 15 There is considerable risk, according to Dr Peter Shaw, that without transfusions, a fatal haemorrhage may occur (e.g. in the brain). 16 It is not in dispute that the alternative treatment held out by the parents as available in Perth at the King Edward Memorial and Princess Margaret Hospital is essentially the same as that at the Hospital as it is now carried out. That is to say, as confirmed by the principal treating doctor, Dr Shaw, the regime in place at the New Children's Hospital specially designed for baby "GG" is a conservative one so far as blood transfusions are concerned respecting the parents' concern in that regard, though placing the welfare of the child as paramount. In particular, the Hospital has adopted so far as it can the supportive therapy which "BB" as parents have put to the hospital including the use of EPO (erythro poietin) and the potential use of an as yet unlicensed product interleukin 11 to encourage the natural generation of platelets. This is subject in the latter case to there being no undesirable side-effects for "GG" including counteraction of the chemotherapy treatment. It is fair to say that the parents "BB" acknowledge with gratitude that the Hospital has in that way shown sensitivity to their concerns. 17 It is also not in contention that to transport "GG" to Perth, certainly inside of the next month and possibly for some time after, would endanger "GG's" life or health and in any event would not be acceptable to the Perth hospital.

RESOLUTION OF THE ISSUES 18 It is well settled that this Court has a common law jurisdiction as parens patriae to safeguard the welfare of children and it is that jurisdiction which the present application invokes. It extends to authorising medical treatment for an infant, even against the parents' wishes (Department of Health and Community Services v J.W.B. and S.M.B. ("Marian's case") (1991-2) 175 CLR 218 by way of exception to what is described as the right to personal integrity. But that jurisdiction is to be exercised "in the best interests of the child" Dalton v Skuthorpe (McLelland J, SCNSW, 27 November 1989, unreported). The paramount concern is the best interests and welfare of the child. 19 The Defendants in their comprehensive submissions for which I express my indebtedness, have pointed out that authorisation for a medical procedure of the sort here contemplated of blood transfusions, requires that the Court be firmly satisfied upon convincing evidence that such procedure is justified; Briginshaw v Briginshaw (1938) 60 CLR 336. The Court should in exercising its judgment in the matter be conscious that the orders sought override the conscientiously held belief of the parents. Nonetheless the Court must place the welfare of the child as paramount. 20 It is clear from the evidence that unless the regime in place permits blood transfusions, "GG's" chances of survival are seriously impaired and her life placed in jeopardy; this is even with the regime of supportive therapy now in place. This is because one effect of the chemotherapy on a child with "GG's" condition is the likelihood that it will bring about a reduced haemoglobin and platelet level. There is an appreciable risk of serious damage to the child's health if such intervention is not permitted until an emergency situation occurs, as Dr Shaw's evidence makes clear, as I explain. 21 For the Defendants it was said that s20A of the Children (Care and Protection) Act 1987 (NSW), already invoked on 4 November 1999 adequately safeguarded the situation. This was because that Act permits intervention by way of blood transfusion where the medical practitioner is of the opinion that it is necessary as a matter of urgency to carry out the treatment on the child in order to save the child's life or to prevent serious damage to the child's health. 22 However, the orders sought, for reasons elaborated by Dr Shaw in his evidence before me, go further than this in seeking to alleviate appreciable risk of serious damage to the child's health. According to Dr Shaw, whose evidence I accept, to leave matters to the point where intervention was only possible under s20A ran firstly the risk that the intervention would be too late. Secondly, it left the child at continuing risk of cranial haemorrhage once platelets dropped to a low enough level, a condition that could occur without warning and with fatal consequences. Essentially, what Dr Shaw explains is that the regime is not just for life-saving intervention but to avoid the need for it by removing the life-threatening event before matters reach that extremity. 23 The Defendants in their comprehensive submissions relied upon a number of authorities and in particular to the case of Re Marion (No. 2) (1993-4) 17 FamLR 336, where Nicholson CJ (at 351) discusses the factors that may be relevant in deciding the best interests of the child, in cases where orders concerning a particular medical procedure are sought. He sets out these factors in terms conveniently summarised below: (i) the particular condition of the child which requires the procedure or treatment; (ii) the nature of the procedure or treatment proposed; (iii) the reasons for which it is proposed that the procedure or treatment be carried out; (iv) the alternative courses of treatment that are available in relation to that condition; (v) the desirability of and effect of authorising the procedure or treatment proposed rather than the available alternatives; (vi) the physical effects on the child and the psychological and social implications for the child of: (a) authorising the proposed procedure or treatment (b) not authorising the proposed procedure or treatment (vii) the nature and degree of any risk to the child of: (a) authorising the proposed procedure or treatment (b) not authorising the proposed procedure or treatment (viii) the views (if any) expressed by: (a) the guardian(s) of the child;' (b) a person who is entitled to the custody of the child; (c) a person who is responsible for the daily care and control of the child; (d) the child; to the proposed procedure or treatment and to any alternative procedure or treatment."

24 It should be noted however that that case involved compulsory sterilisation of an intellectually disabled child rather than the kind of considerations that may dictate blood transfusion for a child whose life is at risk without it. While the factors to be taken into account may not be significantly different, the application of those factors is in the present context affected by the life-threatening consequences if no such medical treatment were authorised. It is in that context that I have considered those factors, in particular taking into account the matters dealt with in para 29 below. I conclude that none of these factors are such as to persuade me against modified orders of the kind I have foreshadowed, having reached the necessary level of satisfaction as to the best welfare of the child.

CONCLUSIONS 25 It follows from what I have said that I am satisfied that order 1 should be made, though in the qualified form that I have earlier indicated. 26 As to order 2, I have given considerable thought to whether it is justified in circumstances where the parents have to date at all times complied with the reasonable directions of the Hospital and whose devotion is not in doubt. They indeed initiated the treatment that has led to the present application, though perhaps without appreciating in the first instance the likelihood of blood transfusions. The concern which I have if no such order is made is that it may place the parents in an agonising dilemma, particularly at the stage the child may no longer be in hospital but receiving treatment as an outpatient. That dilemma could arise if the child displayed symptoms which led the parents to conclude, correctly, that a blood transfusion was likely. The parents through their legal advisers have made clear their deep convictions in such circumstances against a blood transfusion though they have properly acknowledged that they would respect such a Court order. 27 Nor do I think that it is fair to DOCS, the Hospital, or the parents, nor is it compatible with the paramount welfare of the child, to have no version at all of order 2, and instead place a burden on the first two parties to seek such an order as and when the occasion arises. Apart from the strain on those involved, the welfare of the child could be jeopardised by the delay entailed in seeking a further order. However, I do agree with the parents as to consultation. I have so expressed it by referring to consultation with the parents "if available" having regard to the need to avoid delay if this might put at risk the health of the child. 28 In all the circumstances, I believe a modified form of order as appended to this judgment is warranted, primarily for the reasons I have mentioned but also recognising that such an order may actually assist all concerned in that difficult situation. 29 I should conclude by noting the concerns that have been put by the father in his affidavit of 19 November 1999 and repeated and developed in the Defendants' helpful written submissions. These concerns include matters going to the welfare of the child brought up in a household of adherents to the beliefs of the Jehovah's Witnesses though the father was careful to emphasise, and I of course accept, that the parents would love the child no less if a blood transfusion were to have to take place. These concerns also include civil liberties and the medical risks inherent in blood transfusions. I have carefully weighed those concerns but conclude that the paramount welfare of the child is best served by the orders that I have now to make. In modifying the orders sought by DOCS I acknowledge that they were properly concerned to do what they considered best in the circumstances.

ORDERS 30 1. That the Executive Director of the New Children's Hospital at Westmead ("the Hospital") be authorised to carry out, by

(a) any qualified member of the staff of the Hospital; or (b) any qualified medical practitioner visiting the Hospital; the following: (i) the transfusion of blood or blood products and the reinfusion of the child's own blood; and (ii) any treatment ancillary to (i) that any qualified medical practitioner on the staff of the Hospital or any qualified medical practitioner visiting the Hospital, believes at the time to be necessary to prevent serious damage to the health of the child "GG", including the alleviation of appreciable risk of serious damage to the child's health.

That in the event that the First and Second Defendants fail to comply with any reasonable direction following consultation with the Defendants if available, given by any qualified member of the staff of the Hospital or any qualified medical practitioner visiting the Hospital from time to time as to the treatment and attendance for treatment of "GG" (it being acknowledged at all times that the First and Second Defendants have so complied) then it is ordered that they do so comply, such order taking effect only in the event of such failure as aforesaid.

Last Modified: 12/01/1999 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.

Children (Care and Protection) Act 1987(NSW)

New South Wales Supreme Court CITATION : Director General of the Department of Community Services v "BB" [1999] NSWSC 1169 revised - 01/12/99 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 4636/99 HEARING DATE(S) : 12/11/1999, 19/11/1999 JUDGMENT DATE : 19 November 1999

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)