Re AC

The plaintiff, H, seeks orders in the parens patriae jurisdiction of the Court to authorise medical practitioners to administer blood, or blood products and similar therapies to the first defendant, AC, a minor. On 20 March 2026 AC is scheduled to undergo a medical procedure which she has been advised to undertake. AC holds religious beliefs inconsistent with receiving blood or blood products during the operation. She opposes the relief sought, as do her parents, her mother, KC, and her father, MC, who have been joined respectively as the second and third defendants.

All the defendants’ names have been made the subject of pseudonym orders due to the nature of these proceedings, as is usual in the Court’s parens patriae jurisdiction. No other information from which AC, KC or MC might be identified is included in these reasons.

Mr M.W. Anderson of counsel, instructed by Rachel Spittaler of the Crown Solicitor’s Office, appears for H. Mr J.J. Swanton of Legal Aid Commission appears for AC. Mr E. J. Engwirda of counsel instructed by Mr Subarna Raut, Peake Legal for AC’s parents.

AC was born in February 2009 and is just 17. AC and her parents, KC and MC, are practising members of the Jehovah's Witness faith. AC lives with her parents in suburban Sydney and is currently home schooled but also attends TAFE.

In December 2023 the family discovered through medical imaging that AC has a dermoid cyst on her left ovary, which was causing her considerable pain. The cyst is otherwise benign and contains no evidence of cancer.

The Court has been much assisted by the evidence adduced about the medical procedure that is advised for AC, as well as three sources of evidence about AC’s beliefs – the affidavits of her mother, KC, her father, MC, and the statement which she has provided directly to the Court which is annexed to the affidavit of her solicitor, Mr Swanton. All this evidence is accepted.

That evidence paints a picture of a mature young woman who wishes, as far as possible, to make decisions about her own life and her own health and welfare in a manner that is consistent as far as possible with her religious beliefs. AC’s mother says that she and her father have raised each of their two daughters, AC and her older sister, in the faith of Jehovah's Witnesses. AC and the whole family regularly attend Jehovah's Witnesses services together and they talk to the community about their faith and the Bible through their voluntary ministry.

KC describes AC as having "a beautiful personality" and that she is "kind, funny and liked by all who know her well". KC says that AC enjoys spending time with family and her pets and that she loves helping other people and is creative by nature.

AC attended high school for a period but regrettably faced intense bullying by students in her year and was subsequently home schooled. She demonstrated great resilience in engaging in in-person schooling and persevered with it until it was evident that she could not continue due to her mistreatment by other students.

KC gives an account of the course of AC’s medical consultations and treatment after AC was diagnosed with her cyst and records her repeated statements that she wished to reject a blood transfusion, or even the possibility of a blood transfusion, as part of her surgery. KC explains that AC had prepared a letter explaining to the doctors she was consulting late in 2025 that she would not accept a blood transfusion because of her Bible based beliefs. AC gave that letter to the consultant anaesthetist she was seeing at that time. Both AC’s parents support her decision.

AC's father, MC, gives a similar account to KC. He says that AC is creative and loves to draw and paint. MC emphasises AC’s external ministry in the Jehovah’s Witness faith in which AC speaks to people in the local area about her faith and her desire to help them understand the Bible better. MC reinforces AC’s stated conviction that she wants to refuse a blood transfusion. But MC also says, as does KC, that he believes it is important for her to receive this surgery and he is appreciative that it is available to her.

AC's evidence comes through the affidavit of Mr Swanton in his affidavit of 12 February 2026. I pause to say how greatly assisted the Court has been by the legal practitioners representing each of the parties to these proceedings. Their thoughtful and sensitive approach to the issues, together with their expert legal analysis, has allowed the Court to deal better with the difficult decision it has to make in this case.

The letter from AC addressed to the Court written by her in about 6 February this year shows a high degree of maturity in its language and thought elaboration. In part, AC writes:

AC concludes her letter thanking the Court "very much for taking the time to read this letter and consider all that I have said" and she thanks the Court for handling her case.

The plaintiff has called evidence from Dr A, a paediatric gynaecologist who discusses in detail, which does not need to be included in this judgment, the nature of the surgery that she has been recommended for AC. Dr Aconfirms the diagnosis by MRI in November 2023 of a cyst on AC's left ovary which is thought to be a dermoid cyst, a benign growth comprised of several different tissue types. Dr A records that AC, through various consultations throughout 2024, reported pain and related menstrual symptoms which did not resolve.

Dr A records that she gave advice to AC and her parents that elective surgery was advised. Upon being informed that the family were practising Jehovah's Witnesses and that they would not accept a blood transfusion, Dr A informed them that the risk of bleeding during surgery was low, in the order of about 1 in 1000, but that if bleeding were to happen, then it could be catastrophic and life-threatening. That is the opinion which Dr A has expressed in her evidence.

The discussions about AC's surgical options led to surgery originally due to take place on 31 October 2025 to being postponed to 20 February this year. An application was made to this Court in the Equity Duty List in the middle of last week, but the view was taken that the surgical procedure should be postponed from 20 February to a later date so that the doctors who were involved in the surgery would have a better opportunity to absorb the results of these proceedings.

Dr A sets out the risks of this surgical procedure as being bleeding, infection, inadvertent injury to other organs including the bowel, bladder, ureter and blood vessels, post-operative pain and the development of post-surgical adhesions. Dr A emphasises in her evidence, the advice that she gave to AC and her parents that the requirement to administer blood products during the surgical procedure would be, in her opinion, a risk of the order of 1 in 1000. Dr A says she has performed the surgical procedure up to 500 times and has so far never been required to administer blood or blood products.

Dr A says the most likely circumstance in which AC would require the transfusion of blood or blood products is if a major blood vessel is injured, including the aorta or inferior vena cava during laparoscopic entry. Dr A notes that if this occurs, "the rate and speed of blood loss would be too high, and a transfusion would be required". Dr A is also of the opinion that it is extremely unlikely that AC would require a blood transfusion post-operatively.

Dr A says that if it were clinically indicated, prior to using blood products, AC's treating team could use surgical techniques to reduce bleeding and non-blood products, including saline fluid, to increase her blood pressure. However, if the volume of the blood loss is too great and the risk to AC becomes unacceptably high, a blood transfusion may yet be required. This part of Dr A's opinion is worthy of special emphasis. She is saying that there is a continuum of risk involved in assessing the volume of blood loss in a patient under surgery. This means a degree of clinical judgment is required as to when that volume of blood loss is "too great", with the result that "the risk to AC becomes unacceptably high".

Medical and surgical judgments, such as this, are at the heart of the issues before the Court today. Dr A says if AC's blood loss was significant and she was unable to receive a blood transfusion it could lead to multi-organ failure and death. Dr A points out that the other option which is open is for AC to elect not to have the surgical procedure. But this is a course which she and her parents have decided against for understandable reasons. Dr A says failure to have the surgery does increase the risk of a reduction in ovarian reserves and a consequent reduction in AC's future fertility. Dr A says after speaking to AC and her parents "she is confident that AC understands these risks".

Dr A concludes her evidence by expressing her ultimate opinion in paragraphs [50] to [53] of her affidavit which provide as follows:

Dr A acknowledges in her evidence that she may or may not be the ultimate surgeon for AC herself, but her opinion comprehensively explains issues that would face any surgeon in her position. If AC does require a blood transfusion and is unable to receive one there is a serious risk of complication or death due to major blood loss which, in Dr A's opinion "would present an unacceptable risk to her life". Dr A's statements here are the core evidentiary basis for the plaintiff’s application.

The parens patriae jurisdiction which the Court has been asked to exercise is well known and has often been described. A recent statement of the nature of that jurisdiction is conveniently set out in the decision of Meek J in H v AC [2024] NSWSC 40 at 47-62. In short, the jurisdiction is inherent and protective for those such as minors or young persons under the age of 18, who do not have full legal capacity and are generally unable to protect themselves. It affords paramountcy to the welfare of the young person in need of protection, and its ambit cannot be exhaustively defined. There is a broad evaluative and discretionary content in most decisions made in the exercise of this jurisdiction.

When the jurisdiction is applied for decisions about the administration of medical treatment, it calls for an exercise of independent and objective judgment. There are many authoritative statements that the Court should act cautiously in exercising its parens patriae jurisdiction, particularly where a young person is almost of full legal competency as AC is now. She is described as the authorities say, as “Gillick competent” and able to form her own opinions: see Gillick v West Norfolk and Wisebech Area Health Authority [1985] 3 All ER 402; [1985] UKHL 7. The Court must give due regard to the young person's independence, dignity and autonomy as she is able to form an opinion at the age of 17.

The case law in this area has been much considered. A proper starting point is the decision of Gzell J in the Sydney Children's Hospital Network v X (2013) 49 Fam LR 330; [2013] NSWSC 361 which, drawing upon an earlier decision of Nicholson CJ in the Family Court of Australia in Re Alex (2004) 31 Fam LR 503; [2004] FamCA 297, sets out a range of considerations relevant to the authorisation of medical procedures to a minor. It is not necessary to canvas them all in these reasons because the decision here relates to a narrower question.

Then in X v The Sydney Children’s Hospital Network (2013) 85 NSWLR 294; [2013] NSWCA 320 on appeal from the decision of Gzell J (“Re X”) the Court of Appeal confirmed the Court's power to override the wishes of a young person, even where he or she is Gillick competent.

The issue presented for determination here in substance involves a contest about whether the Court should (a) grant the precise relief sought by the plaintiff to authorise and guide the medical professionals who will be involved in the surgery on AC, or (b) as the defendant contends, make no special orders of authorisation to the medical professionals involved and leave the situation to the application of the Children and Young Persons (Care and Protection) Act 1998, s 174 (“the Care Act”) on the basis that this section provides sufficient and satisfactory guidance to those medical professionals.

The Care Act, s 174 relevantly provides:

The defendants submitted that Care Act, s 174 provides a sufficiently complete, clear and understandable code to guide the medical professionals in charge of AC’s care during her surgery and post-operative procedures.

In contrast the plaintiff’s submission is that the decision is one which should be left to the expert judgment of the clinicians involved in the surgery and that Care Act, s 174 provides insufficient guidance to the medical professionals involved. The difference between the two positions is best exemplified by examining the precise terms in which the plaintiff proposes a grant of relief, in contrast with Care Act, s 174. The plaintiff’s claim for relief is as follows:

The core of the plaintiffs’ proposal is that the medical procedures are "necessary to mitigate the risk" [emphasis added] of neurological damage or death.” This contrasts with the terms of Care Act, s 174, that the medical practitioner may carry out medical treatment if the medical practitioner is of the opinion “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” [emphasis added].

Both AC and her parents in submitting that no treatment order should be made in addition to Care Act, s 174, relied upon the decision of Parker J in Hunter New England Local Health District v C [2024] NSWSC 929 in which his Honour considered Care Act, s 174 in the exercise of courts parens patriae jurisdiction when balancing the authorisation of blood transfusion for a young person. Parker J said in Hunter New England Local Health District v C at [45] – [49]:

Parker J was here in part referring to the Court of Appeal’s statements in Re X at [50]:

This passage from Re X emphasises that s 174 is silent as to the orders which may be made by a Court in respect of a young person in the exercise of parens patriae jurisdiction. The defendants' submissions sought to limit Re X to that proposition. That is probably all that Re X is authority for and it does not consider whether s 174 should be or should not be considered in relation to a decision in the exercise of the Court’s parens patriae jurisdiction.

The plaintiff submissions adopt the reasons of Hammerschlag CJ in Eq H v RJ [2024] NSWSC 1404 at [22], [23] and [24], which are as follows:

Hammerschlag CJ in Eq did not consider that the doctor ultimately having a s 174 defence available was a relevant consideration in deciding whether the Court should exercise its parens patriae jurisdiction.

The plaintiff argues that the orders in the summons provide greater certainty to the clinicians to exercise precautionary medical judgment about when to administer blood products to AC. They submit it is not in the best interests of AC for the clinicians to wait until the situation becomes an emergency, that is “urgent” within s 174 before deciding upon a transfusion, and then to rely upon s 174 to absolve the medical practitioner in the event of a claim for assault and battery and lack of consent. The submission is that if the medical practitioner is forced to wait until the situation is “urgent”, it may by then be too late to prevent an emergency developing, which may unnecessarily threaten AC's life or health when earlier intervention may have avoided the emerging crisis.

AC’s submissions are generally to the effect that s 174 is a sufficient basis for the Court to be confident that the doctors who operate on AC will have enough freedom of judgment to be able to administer blood products if they must do so. The submissions put on behalf of the defendants correctly acknowledge that Care Act, s 174 is part of the statute law of New South Wales and they are bound by it. They accept that notwithstanding their religious beliefs, they would have to submit to a situation in which if a doctor were to make a judgment about a blood transfusion that Care Act, s 174 would be a defence to any civil or criminal action against that doctor for going against either AC or her parents' wishes.

AC also submits that the proposed order is unnecessary and may create additional confusion for AC's treating doctors in the unlikely event that a blood transfusion is required. AC submits that the proposed orders would create confusion as there would be two tests that the treating medical practitioners will have to apply: Care Act, s 174, and the test proposed in the Plaintiff’s orders.

The submissions put on behalf of the second and third defendants are to similar effect: that if a need for a blood transfusion arises, it would take place in circumstances that would always trigger s 174 and consequently there is no justification for AC’s rights to be suspended or superseded by the making of an order. Mr Engwirda also submitted for the second and third defendants that the justification for suspending those rights is narrow because the possibility that AC may require a blood transfusion is purely speculative, the risk being only 1 in 1000.

The debate about claimed differences in the reasons of Parker J and Hammerschlag CJ in Eq in the above two cases, about the relevance of Care Act, s 174 to the Court’s exercise of its parens patriae jurisdiction is not a real issue when the decisions are read closely. It is to be noted that Parker J emphasises at [46] that s 174 is available to be taken into account in the parens patriae jurisdiction. Hammerschlag CJ in Eq is commenting about the relevance of something far narrower – the availability of a criminal defence to a doctor: "I do not think that whether the doctor ultimately may have a defence is a relevant consideration". Both analyses are correct, with respect, as far as they go. Care Act, s 174 can be a relevant consideration in the Court’s parens patriae jurisdiction and this Court has taken it into account in these reasons. But I agree with Hammerschlag CJ in Eq that whether the doctor ultimately has a criminal defence under s 174 is not something that the Court has to consider in its parens patriae jurisdiction and is not considered here.

The defendant’s arguments emphasise the need for the Court to recognise AC’s autonomy. As the defendants have put, given AC's age, respect for her autonomy and the dignity of her decision-making are a relevant consideration for the Court. The parties should not be under any doubt that the Court has taken that important factor into account in its analysis, as the authorities they cite emphasise. But even at AC’s age of 17, her autonomy is already limited by the existence of Care Act, s 174, which could require her to accept a doctor's decision to give her blood products.

AC's safety, welfare and best interests (which include the exercise of her autonomy as far as possible) are paramount in the Court’s consideration of this matter as the authorities require. One way of putting the question facing the Court is according to what standard should this Court decide that AC’s wishes could be overridden, after giving proper weight to AC’s autonomy at her age.

The core words of the plaintiff's proposal are that the relevant standard should be when the medical practitioner reaches the opinion that it is necessary "to mitigate the risk" of death or serious neurological damage. In s 174, it is whether, using the words of the section, it is “necessary” as a matter of urgency to save her life or prevent serious damage to her health.

The Court will apply the test proposed by the plaintiff, which is more closely aligned with the judgments that the medical practitioners who will be operating on AC will have to make, than is the standard set by Care Act, s 174. The plaintiff’s submission is persuasive that if those medical practitioners are forced to wait until the situation is “urgent”, it may by then be too late to prevent an avoidable emergency developing. It is not surprising that it is the test the plaintiff proposes, as it responds well to judgments that the operating medical practitioners may have to make. As Dr A says, the orders sought will allow AC’s treating medical team to do what is “clinically necessary and in her best interests during the surgical procedure”.

A powerful factor in the Court's consideration is the medical opinion that has been given. AC's safety in this medical procedure is paramount and, as Hammerschlag CJ in Eq emphasised in H v RJ at [23], focus on AC's safety means the doctors should be free to have as their sole focus in their judgment as her medical team her medical safety and welfare, without having at the same time to navigate other questions.

One of those other questions would be, in effect, where a line for giving a transfusion would be drawn under Care Act, s 174, and other than in accordance with strict clinical judgments. The concern of the Court is that on the approach which is advocated on behalf of the defendants that it will require the doctors to exercise judgments during the surgery which are not strictly clinical judgments and are influenced by other factors. That consideration is a strong one for granting the plaintiff’s that relief it seeks, for the reasons Hammerschlag CJ in Eq emphasised in H v RJ at [23].

Moreover, the plaintiff’s proposed test only marginally increases the additional risk of conflict with AC's beliefs and autonomy, beyond the statutory law that applies in any event through the application of Care Act, s 174. In a 1 in 1,000 situation, as this is, the two tests are certainly different, and the plaintiff’s test is more likely to lead to the administration of blood products. But the Court is not persuaded that the plaintiff’s proposed test is so much more intrusive on AC’s autonomy than that autonomy is already constrained by Care Act, s 174 itself, such that the marginal additional loss of autonomy outweighs the benefits of the responsiveness of the test proposed by the plaintiff.

The defendants have raised the 1 in 1000 chance of this surgery involving a blood transfusion as so unlikely that it is hardly a basis for the Court to create a situation contrary to AC's and her parents' beliefs. But that contention also works the other way. It can equally be said that a grant of the relief the plaintiff seeks is also very unlikely to create any situation which trenches upon AC’s beliefs and wishes. In the Court's opinion, the 1:1000 chance of this surgery involving a blood transfusion is ultimately a neutral factor in this analysis.

The defendants’ concerns about the Court granting the plaintiff’s relief leading to “confusion” are overdone. Although granting this relief will introduce a second governing standard to the operating medical practitioners, it is difficult to conceive of any situation in which the two standards would unacceptably conflict, because the plaintiff’s more responsive test would always be triggered first.

It is the hope and expectation of the Court that as the surgery ultimately unfolds, if AC continues with her decision to have it now on 20 March, that neither test will ever have to be applied. But the Court has decided that it will make the orders sought by the plaintiff in the short minutes of order and the Court will so order.

For these reasons the Court makes the following orders and directions: