Parent of the nation: court authorised medical treatments against the wishes and consent of a child

The recent ex tempore decision of the Supreme Court of NSW (the Court) in H v RJ [1] explored the Court’s approach to its parens patriae jurisdiction and the balancing of competing interests between a medical practitioner and a minor who refused consent for potentially life-saving treatment, in the unlikely event that it was required during surgery.

This article provides a summary of the facts of the case, reasoning of the Court, and considers the ethical dilemmas relating to the court’s approach to such matters.

Issue

In this case, RJ, the minor, withheld his consent to any blood transfusion during surgery due to religious reasons. The Court was required to evaluate the proposed surgical plan of RJ’s treating clinician and the potential complications which might arise within. The Court also considered the religious wishes of RJ, who would not provide consent to a blood transfusion should it be required. RJ was at the time 16 years old, and his parents were also in opposition to a blood transfusion due to their faith.

Background

RJ suffered from a congenital arrhythmogenic right ventricular cardiomyopathy for which treatment required insertion of an implantable cardioverter defibrillator to assist with normal heart rhythm function. The performance of such a procedure carried a rare, but very real risk of an internal bleed. Should the complication arise, a blood transfusion would be indicated in order to prevent serious injury or death. The performance of the blood transfusion itself would carry very little risk to the patient but would be lifesaving in the event that it was needed.

It should be noted that this case is slightly different from some cases found within this jurisdiction where a blood transfusion may be required immediately during emergency surgery, as the patient is bleeding out in the operating theatre and consent has been withheld by a parent. Here, the surgery was planned but nonetheless urgent, as such there was more time for consideration (and for an application to be made in advance of the surgery occurring). As such, the Hospital where the surgery was to be performed (the Hospital), sought a declaration from the Court that they may continue with the surgical plan, and provide treatment as and when required, i.e., regardless of RJ’s refusal and that of his parents to consent to a blood transfusion if needed.

The Hospital sought a declaration and orders from the Court that:

• in the absence of RJ’s consent, the Hospital was authorised to order that any qualified member of Hospital staff, nursing or medical (employed or contracted), administer blood transfusion treatment to RJ during surgery if in the opinion of the authorised clinician, the transfusion was necessary, and that in forming such an opinion, the clinician avoid unnecessary use of, and minimises where possible the use of, the transfusion procedure
• if the authorised clinician was not available, the authorised clinician should instead be a medical practitioner from the Hospital, provided that the replacement clinician had read the Court’s orders, and
• for completeness, it be recorded that, transfusion of blood, or blood products, and a reinfusion of RJ’s own blood, and treatment ancillary to this, be referred to as the “blood transfusion procedures”. [2]

Evidence

RJ’s treating practitioner, a paediatric congenital heart surgeon, gave evidence in cross-examination that the risk of suffering a bleed was low, but that it can, and does, happen from time to time. Further, not every situation where a bleed occurs would require a transfusion, but in some instances, it would be required. Finally, whether a blood transfusion was required was a matter of clinical judgement and the risks associated with performing a transfusion were low. [3]

His Honour Hammerschlag CJ considered the affidavit of RJ and his parents (who provided written submissions by way of affidavit) in determining the application. RJ was considered to be of an intelligence and understanding commensurate with his age with respect to the surgery and its consequences. [4] Hammerschlag CJ also considered the comprehensive clinical psychology report served in the proceedings which set out that RJ was not yet at a level where he could function autonomously or independently specifically within the area of medical decision making, albeit that he was otherwise regarded as being of a “good age-appropriate maturity”. [5]

Case law

The role of the Court in such an application, where it is determined that the young person does not have the necessary decision-making capacity, is to exercise an independent and objective judgment in its parens patriae jurisdiction, to balance the advantages or disadvantages of the medical procedure under consideration: Department of Health and Community Services (NT) v JWB and SMB (Marion’s case); [6] Director-General, Department of Community Services; Re Jules; [7] and Sydney Children’s Hospital Network v X. [8]

Hammerschlag CJ, with reference to the relevant authorities dealing with the exercise of the parens patriae jurisdiction, such as X v the Sydney Children’s Hospital Network [9] (X) and H v AC, [10] considered that the overriding consideration was the safety and wellbeing of the minor. Whilst giving “due weight” to the beliefs of RJ’s parents as well as RJ’s “own level of autonomy”, [11] the Court was persuaded to exercise its jurisdiction to override the religious wishes of RJ and his parents.

His Honour observed that there was a real likelihood that a transfusion would not be required in the course of surgery (as the risk of a complication requiring blood was low), and as a result, it was “unlikely that there will be non-observance of the tenets of their faith”. [12] However, in the event that there was a complication “those wishes . . . must be overridden, his safety and wellbeing are paramount”. [13]

In the case of X, his Honour Gzell J ordered the hospital to be allowed to carry out a blood transfusion on X, a 17-year-old suffering from Hodgkin’s disease who had refused the transfusion on religious grounds. His treating practitioners believed there was an 80% chance of X dying from anaemia in the absence of the treatment. Justice Gzell stated: “The sanctity of life in the end is a more powerful reason for me to make the orders than is respect for the dignity of the individual.” [14]

Whilst X appealed the decision, the Court of Appeal upheld the Supreme Court’s assessment of the situation, in that exercising the parens patriae jurisdiction “the court must act cautiously” [15] and be “judicially satisfied that the welfare of the child requires that the parental right should suspended or superseded”.[16]

In the more recent case of H v AC, Meek J authorised the resumption of AC’s chemotherapy treatment for her Ewing sarcoma on 2 February 2024, about 4 months after AC had declined further treatment, as AC had believed that God had healed her, and she no longer had cancer. [17] In this matter, Meek J considered AC’s competence, including her maturity and ability to reflect on her medical treatment as well as consider her prospects. It was held that for her ability to make decisions regarding refusal to consent to the recommended treatment, or the continuation of that treatment, that she was “Gillick competent”. [18]

In the case of RJ, whilst assessing the competency of RJ, his Honour did not do so with explicit reference to the Gillick competence of RJ. Rather, his Honour relied on the decision of Parker J in Hunter New England Local District v C [19] where the interplay between the exercise of the parens patriae jurisdiction and the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act) was considered. Section 174 of the Act states:

174 Emergency medical treatment

(1) A medical practitioner may carry out medical treatment on a child or young person without the consent of—

(a) the child or young person, or

(b) a parent of the child or young person, 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 or to prevent serious damage to his or her health.

Section 174 operates so that a medical practitioner may carry out medical treatment on an adolescent without their consent, or the consent of their parents, when the medical practitioner is of the opinion that treatment is necessary, as a matter of urgency required to save their life or prevent serious damage to their health.

His Honour, agreeing with the decision of Parker J in C, concluded that s 174 of that Act did not limit the Court’s powers under the parens patriae jurisdiction. Rather, s 174 could be taken into account whenever a Court is asked to make an order under its parens patriae jurisdiction, and that an order was to give “complete certainty” to a practitioner to proceed in administering medical treatment to a minor without any concern that action might be taken against them, albeit that the making of an application imposes costs on all parties and might prove to be a distraction if it is sought on the basis of a contingency which may not eventuate. [20]

His Honour commented that s 174 of the Act provided a defence to a doctor who acts when they believe it is necessary to do so as a matter of urgency. Whilst reliance may be had on s 174 of the Act, Hammerschlag CJ stated such reliance was irrelevant in the circumstances of the present case. On a pragmatic view, a practitioner should not have to wait to be sued to advance a defence under s 174, and then await the subsequent outcome. Rather a trustee, or Hospital, may seek the opinion of the Court in advance without having to wait and see whether legal proceedings will commence. As such, the Court’s parens patriae jurisdiction was not considered to be limited by the operation of s 174.

Another practical issue which arose during the evidentiary process was that it would be uncommon and unnecessarily risky for a surgeon to wait for the moment until a patient requires blood to save them from harm before administering a transfusion. This issue was supported by unchallenged evidence from the Hospital, from a specialist in paediatric surgery, oncology and thoracic surgery. [21]   Hammerschlag CJ held that it was not in a patient’s best interests to allow their condition to deteriorate to a point of urgency before the administration of blood products, and to then rely on the s 174 defence under the Act.

Whilst Hammerschlag CJ did not canvas that full extent of the case law due to the urgency of the matters before him; relying on precedent, he assessed and considered the available clinical psychology report, the “compelling observations” of RJ’s treating practitioner, the wishes of RJ and his parents, and then exercised jurisdiction to override the wishes of RJ and his parents.

The case law indicates that capacity and competence are relevant determiners in assessing whether a minor can refuse treatment but more importantly is the consideration of the outcome to the minor if treatment is not provided when required. Factors such as the probability of the treatment being required, the impact which it will have (such as being lifesaving) are also factors weighed by the Court in its determination. Naturally, where death is assured without medical intervention the Court will be persuaded to making a decision consistent with the preservation of life.

This is what seems to be clear from the decision in H v RJ. Hammerschlag CJ explained that the risk of an adverse event would be low, and the need for blood only arises if that risk eventuates, and even then, RJ may not require a transfusion. It is then unlikely that the wishes of RJ and his parents would need to be overridden. That said, should that situation arise, then those wishes must be overridden as the safety and wellbeing of RJ was the most “paramount” concern. Similarly, whilst blood transfusion may have been unlikely, the upside of the treatment would be that RJ’s life would be saved. [22]

Ultimately, his Honour found in favour of the Hospital and issued a declaration that: “the medical practitioners may administer a blood transfusion to RJ if they are of the opinion that a blood transfusion is necessary”.

Balancing consent

This case displays the tendency of courts, when exercising their parens patriae jurisdiction, to permit clinicians to be authorised in their use of lifesaving treatment against the wishes of a patient who is a minor (or those of their parents). Whilst there is due consideration to those wishes, the fundamental consideration will be the minor’s competency. This competency assessment is based on the minor’s understanding of the medical information before them and the potential consequences. Given the often-complex nature of surgical treatments, and the stark knowledge gap between a minor and medical practitioner, the minor is foreseeably unlikely to display a level of competency allowing them to refuse treatment at risk to themselves.

The practical effect is that, despite refusing treatment, the Court may make a determination allowing for treatment despite that refusal. The parens patriae jurisdiction is solely concerned with the Court’s determination as to the best interests of the minor. This determination is logically guided by the expert health care providers and arguably, societies expectations.

As in the case of RJ, religious belief, and potential shunning by their entire community, was not enough to sway the courts. RJ was determined by the Court to present as intelligent, possessing understanding commensurate with his age. Despite this, the unchallenged medical evidence available to the Court from the Hospital (i.e., the findings of the clinical psychology report and the subject nature of the surgical material to be considered in this instant case) set out that RJ did not have the requisite competency to make life or death decisions relating to the proposed surgery. That is, he was not Gillick competent.

If RJ’s wishes were to be accepted, RJ would be required to make a reasonable assessment of the advantages and disadvantages of the treatment proposal, and the potential consequences of refusal, which it was determined he could not. The position becomes ever more complex as the adolescent approaches the age of majority and their competency increases commensurate with age. For a young child, or a child with limited capacity for decision making, the conversation more readily turns to a decision being made in the minor’s best interests. However, hypothetically, an interesting problem emerges when a highly competent minor, close to the age of maturity, presents and refuses treatment. The unanswered question remains as to what level of understanding and competency is required for a minor to meet the threshold allowing them to refuse treatment.

The general presumption of the Courts seems to be that minors are not competent to refuse medical treatment, especially in the context when refusing treatment could result in death. Interestingly, in many matters where a minor seeks, or consents to treatment, where risks may be associated albeit unlikely, then the minor will not face push-back from the courts or clinical staff (say by a parent such as the case was in Gillick). The result is that where treatment is sought, competency is seemingly not assessed to such a stringent degree, as opposed to a refusal of consent to treatment where a minor’s competency is scrutinised. This creates an interesting jurisprudential problem in that a minor may easily seek, but not so easily refuse treatment. It would be interesting to consider this in the reverse in the determination of a case whereby a minor consents to a moderate to high-risk, lifesaving treatment, when a parent or similar were in opposition.

Conclusion

The decision in H v RJ highlights the tendency of the Court to favour the maintenance of the minor’s life over the minor’s own wishes. Whilst there is consideration of the competence and maturity of the minor, set against the context of complex medicine, the minor’s competency for decision-making is almost by default reduced to the Court exercising its jurisdiction to make the determination for the minor.

Even if a minor were Gillick competent to consent in one area of medicine, they may not be competent in a more complex area of medicine. It appears that the greater and more complex the proposed medical treatment, and the greater the risks associated with that treatment, or refusal of treatment, the greater the competency expected by the Court to be demonstrated by the minor — that is, to meet the threshold of Gillick competence.

Ultimately in these cases, a minor’s right to refuse medical treatment is displaced by an assessment of their competency as framed in the context of their understanding complex medical issues. Whilst jurisprudentially on one view this position can be viewed as limiting toward a minor. It would seem many adults would not meet the same bar, but would by virtue of their age and capacity, be able to refuse treatment. Pragmatically, enabling a minor to allow a risk of harm to arise on account of their own decision-making (in the context of the provision of healthcare) would be unlikely to fit within the moral expectations of society. Especially when, as in H v RJ, the basis for refusal relies on the specific beliefs of one subsect of the community. As such, in the absence of genuine and a medically supported reason to refuse treatment, a court is likely to be persuaded toward allowing treatment to proceed.

In an application concerning treatment of a minor, the Court’s focus is on the party prosecuting such an application being able to establish that the treatment must be carried out as a matter of urgency to save a patient’s life or prevent serious damage to their health. After all, health is a matter of public policy; and public policy has an impact on the law.

Note:  this article was first published in Lexis Nexis Australian Health Law Bulletin, 2025. Vol 33 No 1 (February 2025)

[1] H v RJ [2024] NSWSC 1404; BC202415813.

[2] Above, at [9].

[3] Above n 1, at [10].

[4] Above n 1, at [12].

[5] Above n 1, at [13].

[6] Department of Health and Community Services (NT) v JWB and SMB (Marion’s case) (1992) 175 CLR 218 at 240.

[7] Re Director-General, Department of Community Services; Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193; BC200809861.

[8] Sydney Children’s Hospital Network v X (2013) 49 Fam LR 330; [2013] NSWSC 368; BC201301868.

[9] X v Sydney Children’s Hospital Network (2013) 85 NSWLR 294; 304 ALR 517; [2013] NSWCA 320; BC201313311.

[10] H v AC [2024] NSWSC 40; BC202400791 per Meek J.

[11] Above n 1, at [15].

[12] Above n 1, at [16].

[13] Above n 1, at [17].

[14] Above n 9, at [54].

[15] Above n 9, at [2].

[16] Above n 9, at [2].

[17] Above n 10, at [118] and [122]–[23]

[18] Above n 10, at [228].

[19] Hunter New England Local District v C [2024] NSWSC 929; BC202410342.

[20] Above n 1, at [20].

[21] Above n 1, at [24].

[22] Above.