Gillick competence, parens patriae and Jehovahs Witnesses - blood transfusions to minors

Abstract

An urgent application seeking a declaration for the administration of blood or blood products to a 17-year- old woman ("D1"), who is a Jehovah's Witness, in the event of a post-partum haemorrhage. The application brought by the hospital relied on the parens patriae jurisdiction in case of refusal of consent to a blood transfusion by D1.

Introduction

Mercy Hospitals Victoria brought an urgent application to seek a declaration to administer blood products to a pregnant 17-year-old young woman of the Jehovah's Witness faith in the event that blood products were needed during the lead up to birth, during labour or after her child was born. The hospital relied on the Supreme Court's parens patriae jurisdiction.1 The court looked at Dept of Health and Community Services (NT) v JWB and SMB (Marion's case) (Marion's case),2 in which the High Court described the common law in Australia with respect to the legal capacity of minors to give or refuse consent to medical treatment.[3] In the present case, the court considered the balance between Gillick competence4 and the parens patriae jurisdiction in the context of the overriding duty to do what is in the best interests of the child.

Background

At the time of the application, the first defendant (D1) was a 17-year-old woman who was 38 weeks pregnant. D1 consented to induction of labour to take place at the hospital operated by the plaintiff. She also consented that, if necessary, a caesarean section be performed to deliver her baby. D1 was of very small stature, it was her first baby and the baby was quite large, so the risk of requiring a caesarean section delivery and of associated post-partum haemorrhage was a significant one.5

D1 is an adherent of the Jehovah's Witness faith. The hospital sought her consent to the administration of blood or blood products during or after delivery, if necessary to prevent serious injury or save her life. D1 refused such consent, because such administration is contrary to her faith as a Jehovah's Witness. D1 was a minor under law and so consent was sought from D1's mother, the second defendant ("D2"), who is also an adherent of the Jehovah's Witness faith. D2 informed the hospital that, if asked, she would not provide consent to the administration of blood or blood products to D1.6

The hospital brought an urgent application to the court for a declaration:

that the [hospital] is authorised to administer to [D1] blood and/or blood products as considered reasonably necessary by her treating medical practitioners to save her life or to prevent serious injury during the course of induction of labour, labour, caesarean section and related procedures and the postnatal period in regard to her pregnancy.7

Questions for the court to answer

Five issues required determination by the court:8

what orders if any should be made to protect the identity of D1 from being disclosed to the public; given that D1 [was a minor but aged 17 years,] should the requirement in Order 15 of the Supreme Court (General Civil Procedure) Rules 2015 that she defend the proceeding through a litigation guardian be dispensed with; in its parens patriae jurisdiction, is this Court only concerned with the interests and well-being of D1 or must it also be concerned with the interests and well-being of her unborn baby, or of the baby when born; is this Court's parens patriae jurisdiction affected by the Medical Treatment Planning and Decisions Act 2016 (Vic) ("the MTPDA") or the [Human Tissues Act 1982 (Vic)] HTA; should this Court make the declarations sought? The court briefly answered the first three of these questions. Firstly, a pseudonym order was made to protect the identities of the defendants together with a suppression order.9Secondly, the requirement of a litigation guardian was dispensed with as D1 had representation comprised of counsel and instructing solicitor. And thirdly, the court found that it was not necessary for the unborn baby to be separately represented at the hearing.10

Therefore the court focused on the remaining two questions: namely, whether the court's parens patriae jurisdiction is affected by certain statutes that provide for the making of medical treatment decisions and whether the court should make the declaration sought.11

Parens patriae jurisdiction

The parens patriae jurisdiction of the Supreme Court of Victoria is preserved by way of s 85(3) of the Constitution Act 1975 (Vic). The High Court in Marion's case illustrated that the parens patriae jurisdiction is an inherit jurisdiction to do what is for the benefit of the child.12 The court's care is a direct responsibility for those who cannot look after themselves.13

An issue in this case concerned the capacity of D1 to refuse medical treatment, that is, whether she was Gillick competent. The court noted the proposition for Gillick competence, as summarised by the High Court, as follows:

... parental power to consent to medical treatment on behalf of a child diminishes gradually as the child's capacity and maturity grow and that this rate of development depends on the individual child ... A minor is, according to this principle, 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.14

Macaulay J considered several Australian cases where, in the exercise of the parens patriae jurisdiction, the courts have been asked to authorise the administration of blood or blood products to a minor, who along with their parent, and for reasons associated with the beliefs of Jehovah's Witnesses, have refused to give such con- sent.15

In Minister for Health v AS16 it was Pullin J's view that the paramountcy of the welfare of the child meant that protection of the child was to be elevated above all other interests, although those other interests were not to be disregarded and as such, the court ordered the child receive treatment.17

In X v Sydney Children's Hospitals Network,18 Basten JA noted that religious beliefs, particularly minority religious beliefs, are not to be disregarded because they may be deemed irrational by broader community standards; his Honour observed that religious beliefs are internationally accepted as an aspect of an individual's fundamental autonomy which the state cannot interfere with and must not disregard.19 The Court said that:

To accord a religious belief weight is not to treat it as determinative. There may be cases in which the strength with which a belief is held, and the distress which would be caused by treatment which overrode that belief, might diminish the effectiveness of the treatment[.]20

Macaulay J then considered a Canadian decision of Malette v Shulman21 (Ontario Court of Appeal), conceding that the following statement was not made in the context of the exercise of the parens patriae jurisdiction but, in the light of autonomy of choice for the "mature minor", Macaulay J deemed it helpful:

The state's interest in preserving the life or health of a competent patient must generally give way to the patient's stronger interest in directing the course of her own life... Recognition of the right to reject medical treatment cannot, in my opinion, be said to depreciate the interest of the state in life or in the sanctity of life. Individual free choice and self-determination are themselves fundamental constituents of life. To deny individuals freedom of choice with respect to their healthcare can only lessen, and not enhance, the value of life.22

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