Royal Alexandra Hospital for Children trading as Children's Hospital at Westmead v J & Ors

Director General of the Department of Community Services v "BB" [1999] NSWSC 1169 DoCS v Y [1999] NSWSC 644 CASES CITED : Re Heather; Director-General, Dept of Community Services v 'M' [2003] NSWSC 532. Re Jessica [2001] NSWSC 1207 Royal Alexandra Hospital v Joseph & Ors [2005] NSWSC 422

Royal Alexandra Hospital for Children trading as Children's Hospital at Westmead (Plaintiff) J (First Defendant) PARTIES : J's father (Second Defendant) J's mother (Third Defendant)

Mr Ian Harrison SC (Plaintiff) COUNSEL : First Defendant (no appearance) Second and Third Defendants in person

SOLICITORS : Blake Dawson Waldron (Plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Wednesday 11 May 2005 ex tempore Revised 16 May 2005

2659/05 Royal Alexandra Hospital for Children trading as Children's Hospital at Westmead v J & Ors JUDGMENT The proceedings 1 These proceedings commenced on 28 April 2005 by the filing of a summons brought by the Royal Alexandra Hospital for Children trading as the Children's Hospital at Westmead as plaintiff ["the Hospital"] against three defendants, care having been taken to protect the identity of those defendants. The parties 2 The first defendant will be referred to as J. The second defendant who is J's father and the third defendant who is J's mother will be referred to accordingly. 3 The plaintiff invoked the parens patriae jurisdiction of the Supreme Court in respect of J, it being the case that J and his parents are members of the Jehovah's Witness faith and according to their religion are opposed to blood transfusions.

The hearing before Gzell J 4 The initial hearing took place before Justice Gzell on 27 April 2005. His Honour delivered an ex tempore judgment Royal Alexandra Hospital v Joseph & Ors [2005] NSWSC 422. 5 Gzell J had no doubt of the sincerity of the beliefs of the defendants and I also have no doubt of that sincerity. 6 The ex tempore judgment delivered by Gzell J upheld the plaintiff's entitlement to the orders sought in the then urgent circumstances. The orders were as follows:

1. The acting Head of the Oncology Unit at the Royal Alexandra Hospital for Children trading as the 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 and/or blood products and the reinfusion of the First Defendant's own blood; and (ii) any treatment ancillary to (i), that any qualified practitioner on the staff of the Hospital or any qualified medical practitioner visiting the Hospital, believes at any time to be necessary to prevent serious damage to the health of the First Defendant, including the alleviation of appreciable risk of serious damage to the First Defendant's health. 7 His Honour granted the parties liberty to apply on 24 hours notice. 8 I will deal in a moment with the occasion for the further application presently pursued by the Hospital but note presently that the appearances are Mr Ian Harrison SC for the Hospital, no appearance for the first defendant, and J's parents appearing in person [the Court also having granted permission for J's parents to be assisted at the bar table by a friend, Mr Williams]. The first defendant's procedural position 9 The situation with respect to J himself requires to be regularised. J a minor being by the Rules of the Court described as a "disable person", Part 63 Rule 6 (1) of the Supreme Court Rules is engaged. This provides that where originating process in any proceedings is served on a disable person, an appearance is required to be entered by the disable person within a limited time. If no appearance is entered within that time, a party to the proceedings shall not take any step in the proceedings affecting the disable person until an appearance is entered by a tutor for the disable person. 10 Richie's Supreme Court Procedure (NSW) at annotation 63.6.1 makes the point that proceedings in default of appearance are irregular by reason of non-compliance with the requirements of the rule, whether the plaintiff knew of the disability or not. Non-compliance does not however render the proceedings void. 11 Annotation 63.6.2 to Ritchie also makes plain that where a disable person is a defendant who has not entered an appearance, it is open to the plaintiff to nominate an appropriate person to be appointed by the Court as tutor for the disable person. An independent person is an appropriate person. The consent of a solicitor put forward as tutor must be obtained preferably prior to seeking the appointment, as the Court will not impose the significant responsibilities and duties of a tutor on an officer of the Court without his consent. 12 Part 63 Rule 7 deals with the ability of the Court on motion by a party to the proceedings or any other person, to appoint a tutor for a disable person for the purposes of the proceedings. 13 In my view it will be necessary as soon as practicable for these provisions of the Supreme Court Rules to be complied with. However in the special circumstances which obtain today I dispense presently with any requirement prior to dealing with the instant application for there to be appointed a tutor of the first defendant. 14 In that regard it is convenient to note that the Children and Young Persons (Care and Protection) Act 1998 deals with emergency medical treatment and provides in section 174(1) inter alia as follows:

"A medical practitioner may carry out medical treatment on a child or young person without the consent of:

if the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life of to prevent serious damage to his or her health." 15 As will appear from what follows it is crystal clear that the proper and principled exercise of the Court's discretion is to presently dispense with any further obligations of service on the first defendant of the Summons or of the terms of this application.

The Hospital's position on approaches to the Court 16 Justice Gzell's order did not provide that it was an order "up to and including" any particular date. For that reason it is likely arguably entirely unnecessary for the plaintiff today to be seeking, as it does, for an order in like terms to be made [but to be expressly made until further order]. 17 Mr Harrison has explained that his client takes the view [and will on his instructions continue to take the view] that whenever a particular step [similar in kind to orders already made and to be made today] is to be taken, his client, wherever practicable and possible, will again approach the Court for the making of an order in that particular situation. This is to avoid any possible suggestion that future procedures had not been, on an instant specific basis, the subject of very close analysis, evidence and Court adjudication. 18 To my mind that is a salutary position for the plaintiff to take albeit that the Court accepts that where emergencies arise it may or may not be practicable for the Court to be approached on every occasion. The Courts orders are ambulatory. The principles 19 There is no issue as the principles of law which are engaged on an application such as the present. There is no issue as to the power of the Court to make the orders which have been made and are now sought. 20 The Court acts under the parens patriae jurisdiction to make such orders. The authorities supporting that are DoCS v Y [1999] NSWSC 644, Director General of the Department of Community Services v "BB" [1999] NSWSC 1169, Re Jessica [2001] NSWSC 1207 and Re Heather [2003] NSWSC 532. The evidence 21 I turn next to examine the evidence presently before the Court. Dr Bergin's evidence 22 The evidence adduced from the plaintiff comprised firstly an affidavit by Dr Mary Bergin, the Senior Staff Specialist of the Oncology Unit at the Royal Alexandra Hospital for Children. Dr Bergin had sworn an affidavit which was filed before Justice Gzell and relied upon in those proceedings, that affidavit being sworn on 27 April 2005. 23 In her earlier affidavit Dr Bergin had deposed that J was diagnosed with acute lymphoblastic leukaemia in March 2005. Since that diagnosis he had been attending the Oncology Unit of the Hospital for treatment under the supervision of his attending medical officer, Dr Michael Stevens. 24 In her affidavit of 11 May 2005, Dr Bergin has updated the Court in terms of that which had followed the making by Justice Gzell of his earlier order. Dr Bergin has deposed that following the making of that order she immediately authorised qualified members of the Hospital's staff to begin transfusion of packed cells and platelets. This transfusion continued through until Thursday 28 April 2005. The transfusion proceeded uneventfully. No attempt was made by J or his family to stop the transfusion. 25 Dr Bergin further deposed having read J's medical records and having been informed by Dr Stevens as follows:

(a) Prior to the transfusion of packed cells and platelets, J's haemoglobin level was 25 g/L and his total white cell level was 0.9 x109/L. A normal haemoglobin level is in the range 120 - 140 g/L, and a normal white cell level is in the range 2.0 - 5.0 x 109/L. Prior to the transfusion J's platelet count was 15^109/L. A normal platelet level is greater than 100^109/L. A transfusion in required when platelet levels fall below 20^109/L.

(b) On Friday 29 April 2005, J's haemoglobin rose to 61g/L. his father asked of the treating doctors that he be given a "rest day" and not transfused for the duration of the day. It was agreed between the treating doctors and J and his parents that transfusions would temporarily cease and recommence on Saturday 30 April 2005 if J's haemoglobin level remained below 70g/L.

(c) On Saturday 30 April 2005, J's haemoglobin level was 65 g/L. A second transfusion of packed red cells was commenced on Saturday 30 April 2005. The transfusion proceeded uneventfully. No attempt was made by J or his family to stop the transfusion. Platelets were not transfused at this time.

(d) J responded well to the transfusions on 27 April 2005 and 30 April 2005. On Monday 2 May 2005, J's haemoglobin level was 94 g/L and his platelet count was 142 ^109/L. No further transfusion of blood or blood products has taken place since that time.

(e) J was discharged from the Hospital on Tuesday 3 May 2005 and returned for scheduled reviews in the Oncology Unit's outpatient clinic on Wednesday 4 May 2005, Friday 6 May 2005 and Monday 9 May 2005. He is currently expected to attend the outpatient clinic twice weekly over the coming months.

(f) J has not fully recovered from his initial phase of treatment for leukaemia. When the body is not producing its own platelets, transfused platelets are short-lived and do not survive long in the body. Without a further transfusion, J's platelet levels are likely to fall and to reach life-threateningly low levels in the very near future, possibly as early as Thursday 12 May 2005, tomorrow. As of Monday 9 May 2005, his haemoglobin level was 85 g/L and his platelet count had fallen to 66^109/L.

(g) If J's platelet levels fall below 20 x 109/L, as is expected to occur in the very near future, and he does not receive a further transfusion of platelets, he will be at risk of spontaneous cerebral haemorrhage, or stroke. Haemorrhage of this kind is frequently fatal. Without transfusion he also risks spontaneous bleeding within other organs which presents a serious risk his health. 26 Dr Bergin also deposed that Dr Michael Stevens continues to act as J's treating physician and that she has been informed by Dr Stevens that it is his opinion that:

(a) At least one further transfusion of platelets is necessary in order to avoid the risk of serious injury or death to J already described.

(b) The transfusion would likely be administered to J when he attends for one of his twice weekly consultations, which may be as early as 12 May 2005.

(c) Once a transfusion is given, the risk of spontaneous cerebral haemorrhage and bleeding is expected to be averted for approximately two months during the next phase of treatment.

(d) J will then commence the High Dose Methortrexate phase or "M-phase" of treatment, which will continue for approximately 2 months. The M-phase of treatment is significantly less demanding than the initial phase of treatment. Provided the Patient fully recovers from the initial phase of treatment, there is a significantly decreased risk of the Patient requiring transfusion during the M-phase phase of treatment.

(e) Upon completion of the M-phase of treatment, J will then commence the "re-induction" phase of treatment, similar to the initial phase of treatment. The re-induction phase of treatment is very demanding and is likely to result in significant suppression of red-blood cell production and, accordingly, may require further transfusion of blood and/or blood products.

(f) There remains a reasonable prospect of cure in the long term providing J continues to receive the remainder of the two years' planned chemotherapy. 27 It is Dr Bergin's understanding that J and his parents continue to maintain their objection to transfusion of blood and blood products. She and Dr Stevens had seen J's statement which was tendered before Justice Gzell on 27 April 2005. She and Dr Stevens continue to be of the view that J's competency to decide either to request blood or to continue not to request blood remains questionable. Dr Stevens continues to be of the opinion that J has an intellectual age of a much younger teenager. 28 The further affidavit relied upon by the plaintiff is that of Dr Michael Stevens, the attending medical officer (that is the physician supervising management of J) of 11 May 2005. He has deposed that he has seen, read and is familiar with J's medical records, that J was transfused with blood and platelets on 27 - 28 April 2005 and again on 30 April - 1 May 2005 while still an inpatient at the Hospital. J was discharged from the Hospital in good condition on Tuesday 3 May 2005. 29 He has deposed that J returned to the Oncology Unit's outpatient clinic for review on Wednesday 4 May, then seen by Dr Margaret Fulton, Medical Officer in the Oncology Treatment Centre. Dr Stevens himself did not see J on that visit. 30 On 4 May 2005 he spoke with Dr Fulton who said to him words to the effect "that J was well", "that [Dr Fulton had] have made arrangements for [J] to receive his next planned chemotherapy as an outpatient on Friday 6 May 2005." 31 Dr Stevens has also deposed that J attended the clinic on 6 May and was reviewed by Dr Dunnett Medical Officer in the Oncology Treatment Centre and received the cyclophosphamide infusion over 4 hours. Dr Stevens greeted J and his parents while J was receiving the chemotherapy. They had a short but friendly conversation. No mention was made by J or his parents of his recent transfusion. Arrangements were made for J to return for continuing outpatient review and monitoring of blood counts on a twice weekly basis. 32 He has deposed that J and his father attended for the first of these checkups on 9 May, that J was seen by Dr Nightingale Medical Officer in the Oncology Treatment Centre, that he did not see J on that occasion but did greet his father and spoke with his father briefly while they were in the clinic. J's father and he had a brief but friendly conversation. 33 He also had spoken to Dr Nightingale subsequent to J's check up on Monday 9 May who said to him that J's blood count on 9 May was Hb 85 g/L, WBC 2.7 x 109/L, platelets 66 x 109/L. The platelet count had been 118 x 109/L on 6 May 2005. Accordingly Dr Stevens evidence was that J's platelet count had fallen by nearly one half over the weekend. 34 Dr Nightingale had also said to Dr Stevens "I have reported the count to the father and patient, saying that the counts were falling again, and that J would need a platelet transfusion soon, and that I would book platelets to be available for his next visit on 12 May. J's father in reply said, "Okay, that's no problem, we'd be in and out in an hour". 35 Dr Stevens evidence is that he interpreted that to mean that the transfusion of platelets would not cause J and his family undue delay on their next visit on 12 May 2005. 36 Moving away from Dr Stevens' affidavit for a moment I interpolate that during the course of today's hearing J's father gave some evidence in which he said that some of what Dr Nightingale had reported to Dr Stevens did not represent his own recollection. 37 Continuing with Dr Stevens evidence, it was that J's progress blood counts indicate that his bone marrow has not as yet completely recovered from the depression caused by the initial two months of treatment. In particular, his production of platelets has not as yet recovered to the stage where his platelet count is self-sustaining. On the evidence of Dr Stevens, J will almost certainly require a further transfusion of platelets to protect him before his own production of platelets recovers sufficiently to sustain his platelet count. On Dr Stevens' evidence this transfusion will very likely be required on, or very soon after 12 May, that is tomorrow. 38 Dr Stevens' evidence is that J's next planned treatment will comprise an IV infusion of methotrexate on four occasions, once every two weeks, over the next two months ("M phase"). This phase on his evidence is not expected to cause a requirement for transfusion support. J will then receive a further two months of more intensive treatment ("re-induction phase") similar to what was given over the first two months. Dr Stevens' evidence it that it is common for patients to require transfusion support during re-induction phase. 39 Turning then to the evidence called by the defendants, that evidence was firstly given by J's father who read from the bar table a statement which is taken as evidence in the circumstances [the plaintiff not contending to the contrary]. The statement essentially is a statement of the position taken by J's parents, and is salutary. It is appropriate to be set out in its entirety reading:

"We are a very close family and we dearly love each other. This situation involving our son is like a nightmare. · We dearly love our son and want the best for him. · Each of us, including J have deeply held religious beliefs which prevent us from consenting to a treatment that we believe is against God's law. · J is not a baby. He fully understands the position he's in and feels that having blood given to him against his wishes is a violation of conscience. He believes that what is happening is not just a medical matter, he is being stripped of his right to be obedient and faithful to his God.

We appreciate the help now being provided by those treating J. It means a great deal to our family to feel that those concerned with providing treatment for our son are doing everything they can to help him at this difficult time.

We understand the court has the power to make the order being asked for, but we would never consent to the order being made. However, if you decide to make the order, we respectfully ask for it to be changed from the way it reads at present. · We would like it to be limited to the time when J is having chemotherapy treatment. As it stands, it seems to be unlimited in regard to how long it lasts. · We would also like the order to contain an undertaking by the hospital that they will use all strategies other than the transfusion of blood or blood products, which in the opinion of its treating oncology team are reasonably available and clinically appropriate, in an attempt to avoid the situation where it is felt necessary to administer blood or blood products to prevent serious damage to J's health or the alleviation of appropriate risk of serious damage to his health. · Including an undertaking like this in the order does not prevent the hospital from providing our son with the best treatment possible and that 's what we want. However, it assures us that this court is trying to do what it can to see that our deeply held beliefs and those of our son will only be overridden as a last resort. We believe the hospital would be happy to give this undertaking.

We are at the mercy of the court and ask that the decision you make takes into consideration just how important this matter is to us. It involves our worship and integrity to our creator." [MFI D2/1] 40 Next J's father gave evidence in the witness box. That evidence was transcribed. The evidence did not materially depart from the written statement. J's father did give some evidence in relation to family discussions. 41 I proceed both in relation to J's father and mother upon the assumption which seems to me to be made out by everything that I have heard today, that a particular comment by Justice Gzell remains true today. I refer here to the sentence appearing in paragraph 5 of the reasons for judgment given by Justice Gzell in terms of J's parents:

"They have said that if he is transfused they will not condemn him and will continue to relate to him lovingly as their son."

There has been no evidence to suggest that either of J's parents moves away from that sentiment and I am quite confident that they hold that sentiment today, as they did then. 42 As will have been noted, one matter which J's father addressed was an application effectively, that if the Court was to make the orders sought by the Hospital today it should do so on condition that a particular undertaking be given to the Court by the plaintiff. The words of the undertaking sought were as follows: "The hospital undertakes that it will use all strategies other than the transfusion of blood or blood products, which in the opinion of its treating oncology team are reasonably available and clinically appropriate, in an attempt to avoid the situation where it is felt necessary to administer blood or blood products to prevent serious damage to J's health or the alleviation of appropriate risk of serious damage to his health." 43 The Hospital has opposed the imposition of that condition as a condition of the making of the order today sought. As I have understood Mr Harrison's submission in this regard, the reason for opposing for the Court extracting such an undertaking from the Hospital is that this is a circumstance in which the exigencies of the moment mean that, to the extent practicable, the court should not tie the hands of the Hospital in terms of a black letter undertaking to the Court. As hopefully J's parents would understand, if an undertaking is given to the Court by a party and that undertaking is not honoured, the undertaking can be visited with dire consequences. If an undertaking is not honoured then the Court can address the matter in contempt proceedings, by imposing a penalty; the Court has the power to incarcerate those responsible. It is a matter of the highest possible moment to breach an undertaking to the Court. 44 To my mind the particular circumstances here are such as mandate the Court accepting the assurances [which came forward from the Hospital through Mr Harrison] that to the extent possible the Hospital will always carry out its level best to ensure that it offends the dictates of J's religion to a minimal extent, and only to the extent absolutely necessary: that is not an undertaking it is an attitude. It seems to me that the attitude taken by the Hospital [in circumstances of the provisions I have already read relating to emergency medical treatment in the Children and Young Persons (Care and Protection) Act] is all that the Court could expect from a plaintiff in the position of this Hospital. For those reasons the request for the Court's orders to be made conditional upon such an undertaking being given is not acceded to. 45 The matter which J's father addressed was the continuance of the orders. I will be today exercising the discretion of the Court by making the orders now sought today by the applicant/plaintiff, namely utilising the words "until further order". I will however make very plain and I will do this by order, that the defendants have liberty to restore the proceedings to the list on short notice for the purpose, if they be so advised of applying for an order discharging the orders which will have been made "until further order". An order made "until further order" can continue for a very long time and events change, circumstances change. It is entirely accepted [and the Hospital could not possibly oppose this] that if and when circumstances may change any of the defendants may approach the Court to ask the Court to vary or to discharge the further operation of orders which had been made up to that point in time. 46 To my mind that ought accommodate the anxiety expressed by J's parents with respect to the continuance of these orders and leaves it open to them to redress changes in circumstances by an application to the Court on notice to the Hospital. 47 I refer next to the evidence given by J's mother, that evidence also having been transcribed. The evidence generally was entirely supportive of what J's father had had to say but went on in graphic detail, to describe the anguish which is to be found in the family home at the moment in these circumstances and in particular the very sad circumstance relating to J's feelings about what is occurring. She said she had spent, I think, a half the night with him as he cried over a particular matter. His anguish relates to the matter which he put in his statement before Justice Gzell on the last occasion where he had given reasons for his refusal to take blood because of his beliefs and strong relationship with God. He had then asked that he be respected "for refusing blood. It is my will and religion not to take blood and please respect this." His more particular present source of anxiety was that one of the affidavits to which I have alluded had been read to him or passed to him to read. I can well and truly understand that he may take exception to any reference to him in terms of his maturity. That is another very important reason why the sooner these irregularities in his not being represented can be corrected, the sooner presumably there will be before the Court a person who will manage what needs and does not need to be communicated to J extremely carefully. I do understand that concern of J's mother and of himself. 48 At the end of the day, there is absolutely no doubt from the materials presently before the Court that it is in J's best interest that the orders now sought be made. The urgency of the situation has already been mentioned. If J's platelets levels fall below fall below 20 x 109/L, as is expected to occur in the very near future, and he does not receive a further transfusion of platelets, he will be at risk, as I have said, of spontaneous cerebral haemorrhage, or stroke. Haemorrhage of this kind is frequently fatal. Without transfusion he also risks spontaneous bleeding within other organs which presents a serious risk to his health. 49 On that material it is clearly in his best interests that the orders be made. His life ought be spared. He may well die in the absence of the order being made. 50 Like Gzell J, I am quite certain that the proper and principled exercise of the Court's discretion is that I should reject J's wishes that he not have blood transfusion. Notwithstanding that he is over sixteen years old and that his wishes must be given serious consideration, in law he is still a child. What must guide the Court is its consideration of his best interests 51 For those reasons The court makes the following orders:

I dispense with any requirement in the rules that the plaintiff move for the order which it seeks presently by notice of motion.

I direct that a notice of motion seeking the order about to be made be filed and served by 4.00pm on 12 May 2005.

I make orders in terms of paragraphs 1 and 3 of the document entitled Order which I initial and date 11 May 2005.

I order that the plaintiff on or before Monday 16 May 2005 file and serve a notice of motion for the appointment of a tutor for the first defendant.

I order that the notice of motion the subject of Order 4 be returnable before the Duty Judge at 10.00am on Wednesday 25 May 2005.

I abridge the time for service of the notice of motion, the subject of Order 4, on the defendants to 17 May 2005.

I note that the plaintiff makes no application for costs.

I order that the court file not be made available for inspection by any person other than the legal representatives for the plaintiff and the individual defendants or their legal representatives without leave of the Court.

I order that the identity of the defendants to these proceedings not be disclosed by any person without the leave of the Court.

I order that these orders be entered forthwith.

I certify that paragraphs 1 - 51 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 11 May 2005 ex tempore and revised 16 May 2005

      Susan Piggott
      Associate

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.