Hospital v Baby M

HER HONOUR: These proceedings were commenced on 12 October 2020, when a specialist children's hospital sought orders in the Court’s parens patriae jurisdiction to authorise cardiac and ear nose and throat (ENT) surgery on a three month old baby girl, “Baby M”, at a time when the baby’s parents had not given their consent. Before the hearing commenced today, I was informed that the parents now consent to the cardiac surgery. It is proposed that these proceedings will be stood over to allow that surgery to be performed and Baby M to recovery from the surgery. Then the parents will consider the ENT surgery, which it appears from the medical evidence should be undertaken as soon as possible thereafter.

The matter for consideration is what form the orders to reflect this consensus should take, that is, whether the Court should simply note that the parents now consent to the cardiac surgery or whether the Court should make declarations that the hospital is authorised to perform those specific procedures. Senior counsel for the hospital submitted that it is in the interests of all parties – the baby, the parents and the doctors – to have clarity and certainty, to avoid any confusion going forward, and to ensure that there is no change of direction in respect of the surgery, which is to be performed tomorrow. Senior counsel for the parents submitted that, the parents having now given their consent, there was no need for the Court to exercise its parens patriae jurisdiction. Counsel for Baby M agreed that a notation of the parents' consent was appropriate and gave sufficient clarity in the circumstances.

In considering how to approach this matter, it is worth remembering the nature of the parens patriae jurisdiction, as explained by Lord Eldon in Wellesley v The Duke of Beaufort (1827) 2 Russ 1 at 20 (38 ER 236 at 243):

As Lord Esher MR described the jurisdiction in R v Gyngall [1893] 2 QB 232 at 241:

In exercising the parens patriae jurisdiction, “the overriding criterion to be applied in the exercise of parental authority on behalf of a child is the welfare of the child objectively assessed”: Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 (Marion’s case) at 240 per Mason CJ and Dawson, Toohey and Gaudron JJ. Brennan J observed (at 280) that, although the jurisdiction is extremely broad, it is exercised cautiously in the manner stated by Lord Fitzgibbon LJ in Re O'Hara [1900] 2 IR 232 at 240 (and adopted by the House of Lords in J v C [1970] AC 668 at 695) as follows:

In Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193, Brereton J applied these principles. The circumstances of Re Jules should be borne in mind. The parents of a child did not consent to their child being vaccinated and, although the Court made orders authorising a hospital to administer a vaccination, the parents did not bring the child to hospital in compliance with the orders and ultimately the services of the New South Wales Police were engaged to try and find the child. That, of course, is quite different to the circumstances here.

Brereton J noted that the parens patriae jurisdiction empowers the Court to assume and delegate parental responsibility: at [14]. At [15]:

More recently, in Re Joel [2013] NSWSC 1299 a child required a bone marrow transplant. The child was a ward of the State. The Minister for Family and Community Services was entrusted with medical decisions in respect of the child. The Minister ultimately decided that he was prepared to give consent for the bone marrow transplant, and Bergin CJ in Eq then held, in circumstances where she was asked to make orders approving the treatment, at [12]:

The Hospital relied on The Hospital v S (a minor) [2019] NSWSC 642, where Robb J made declarations in the form I am asked to make. The history of that case is worth noting. His Honour was asked to make declarations which would have the result of discontinuing life support for a three year old boy. The hospital sought declarations that it was appropriate to end life support. The parents opposed the making of the orders. At the conclusion of the evidence and the parties' submissions, Robb J formed the view that the evidence in the case was clear and necessitated a conclusion that the Court should make the declarations sought by the hospital: at [15]. It also appeared to Robb J that the Court should act immediately. “Accordingly, I announced my judgment to those present in the courtroom. Discussion then ensued as to the appropriate form of the declarations, and an agreement was reached” between the hospital and the parents: at [15]-[16]. His Honour then made orders in the form of declarations, indicating he would publish his reasons as soon as possible. In those reasons, Robb J noted as to the form of the relief granted, at [40]:

His Honour noted the comments of Brereton J in Re Jules, that the exercise by the Court of its parens patriae jurisdiction should take the form of the granting of consent rather than the authorisation of the medical procedure. Robb J continued, at [40]:

The Hospital v S is different to the facts at hand. Here, whilst the parents did not initially consent to the cardiac and ENT surgery, having had the benefit of reading all of the clear, comprehensive evidence of the hospital filed in support of this application, the parents gave their consent to cardiac surgery before the commencement of the hearing today. I have no reason to think that the parents will change their minds or will equivocate. They have been described in the clinical notes as “level-headed”. I have no reason to think that they will agree today, but not agree tomorrow. There would be reason for them to do so, on the basis of the medical evidence before the Court. I am not minded to depart from the course suggested in Re Joel. Where the parents give their consent, there is no need for the Court to act as “supreme parent” to make decisions about their baby for them.

It is clear from the clinical notes that events which have unfolded since Baby M was born have been traumatic, emotional and frustrating. The parents must be exhausted. Many people in their position would be scared. The path which the parents and Baby M have already travelled has had twists and turns and will likely continue to do so. Decisions will need to continue to be made; some easy, some obvious, some really hard. As Bergin CJ in Eq noted in Re Joel at [9]:

Of course, there is no substitute for specific, individual advice by specialists on your baby. The parents seem to appreciate that they need to continue to hear the medical information as it emerges and to continue to make decisions that give proper recognition to this medical information.

I will make orders noting that the parents’ consent to the procedures described in the affidavits of the Hospital’s clinicians, so it is clear the procedures which the parents have given their consent to be performed on Baby M tomorrow.