Citation: Director General of the Department of Community Services v "BB" [1999] NSWSC 1169 revised - 01/12/99
Court: Supreme Court of New South Wales, Equity Division
Date: 19 November 1999
Judge(s): Santow J
Background
A seven-month-old infant, referred to as "GG" to protect her identity, was diagnosed with acute lymphoblastic leukaemia in early November 1999 and admitted to the New Children's Hospital at Westmead. Her treating doctors advised that blood transfusions and blood products were a necessary part of the internationally recognised treatment protocol for her condition. Without transfusions, there was a significant risk of fatal haemorrhage.
GG's parents, referred to collectively as "BB", are Jehovah's Witnesses. They held deeply felt religious objections to blood transfusions and declined to consent to the treatment. On 4 November 1999, a transfusion was administered under the emergency powers in section 20A of the Children (Care and Protection) Act 1987, which permits urgent treatment to save a child's life or prevent serious damage to health without parental consent.
The Director General of the Department of Community Services (DOCS) sought orders from the Supreme Court authorising ongoing transfusions as part of GG's treatment regime, rather than relying on the emergency provision each time the need arose. The parents, while opposing the orders, acknowledged that the Hospital had shown sensitivity to their concerns by adopting a conservative approach to transfusions and incorporating supportive therapies where possible.
Legal Issues
- Whether the Supreme Court's parens patriae jurisdiction (the court's inherent power to act as guardian of children) extended to authorising blood transfusions for an infant over the sustained religious objections of her parents.
- What standard of proof applied before the court would exercise that jurisdiction to override parental wishes.
- Whether orders should be framed to authorise ongoing treatment to prevent serious harm, rather than only emergency intervention under section 20A.
- What form Order 2, requiring parental compliance with hospital directions, should take, having regard to the parents' devoted involvement in GG's care.
Decision
Santow J confirmed that the Supreme Court holds an inherent common law jurisdiction, known as parens patriae, to safeguard the welfare of children. This jurisdiction extends to authorising medical treatment for an infant even against parental wishes, as established in the High Court decision in "Marion's case." The paramount consideration is always the best interests and welfare of the child.
His Honour acknowledged that exercising the jurisdiction to override a family's conscientiously held religious beliefs was a serious matter requiring convincing evidence, consistent with the standard described in Briginshaw v Briginshaw. The court accepted the medical evidence that GG faced an appreciable and serious risk to her health without ongoing transfusions. Transferring GG to a Perth hospital, which the parents had suggested as an alternative, was not a viable option as it would endanger the child's life and was not acceptable to the Perth facility.
On the form of the orders, Santow J modified both orders sought by DOCS. The authorisation for transfusions was refined to be limited to what a qualified medical practitioner believed necessary to prevent serious damage to GG's health, including alleviating an appreciable risk of such damage. The compliance order was reframed to acknowledge the parents' cooperative conduct, to require consultation with them where available, and to operate only if they actually failed to comply with a reasonable direction.
The court weighed the parents' civil liberties concerns, the medical risks of blood transfusions themselves, and the importance of GG being raised in her family's household. These considerations were ultimately outweighed by the paramount welfare of the child.
Orders Made
- Order 1: The Executive Director of the New Children's Hospital at Westmead was authorised to carry out, through qualified hospital staff or visiting medical practitioners, the transfusion of blood or blood products, the reinfusion of GG's own blood, and any ancillary treatment, where a qualified medical practitioner believed it necessary to prevent serious damage to GG's health, including the alleviation of an appreciable risk of such damage.
- Order 2: In the event the parents failed to comply with any reasonable direction given by qualified hospital staff or visiting practitioners (following consultation with the parents if available), they were ordered to comply. The order expressly acknowledged their ongoing compliance to date and took effect only upon actual failure to comply.
- Order 3: Liberty to apply on reasonable notice.
Key Takeaways
- The Supreme Court's inherent parens patriae jurisdiction enables it to authorise medical treatment for a child, including blood transfusions, over the sincere religious objections of parents, where the child's welfare so requires.
- A high standard of proof applies before that jurisdiction will be exercised: the court must be firmly satisfied on convincing evidence that the proposed treatment is justified, in recognition of the gravity of overriding parental beliefs.
- There is a meaningful distinction between the emergency power in section 20A of the Children (Care and Protection) Act 1987, which responds to immediate crisis, and orders made under the parens patriae jurisdiction, which can authorise ongoing treatment to prevent an appreciable risk of serious harm before an emergency arises.
- In framing orders of this kind, the scope of authorisation matters. Santow J confined the transfusion order to what a qualified practitioner considered necessary to prevent serious damage, avoiding any suggestion that unrelated treatments also required court authorisation.
- Compliance orders directed at parents are not automatically granted alongside treatment authorisation. The court modelled Order 2 to recognise cooperative parental conduct, build in a consultation requirement, and operate only as a contingency upon non-compliance.
Legislation and Cases Referenced
Legislation
- Children (Care and Protection) Act 1987 (NSW), s 20A
Cases
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Dalton v Skuthorpe (McLelland J, SCNSW, 27 November 1989, unreported)
- Department of Health and Community Services v J.W.B. and S.M.B. ("Marion's case") (1991-2) 175 CLR 218
- Re Marion (No. 2) (1993-4) 17 FamLR 336