H v P1 and P2

1. [1]

   The plaintiff, a public hospital, commenced these proceedings in the Equity Duty List on 4 September 2018, by summons to invoke the parens patriae jurisdiction of the Supreme Court in relation to proposed urgent eye surgery to a child born prematurely on 1 April 2018. The plaintiff proposed to undertake the eye surgery on 6 September 2018 in respect of this very young child. The application was necessary because the parents of the child, who are the first and second defendants, would not consent to the surgery.

2. [2]

   I made various procedural orders on 4 September 2018, including that the summons was to be returnable for hearing before me at 2 PM on 5 September 2018, that the summons and other documents be served on the child’s parents, and by order 6 that the identities of persons involved in the matter be suppressed.

3. [3]

   Order 6 was in the following terms:

4. [4]

   In accordance with the suppression orders, I will in these reasons refer to the child as “C”, the parents of the child as “P1” and “P2”, and the hospital as “H”.

5. [5]

   On 5 September 2018, the hearing of the matter occurred before me in closed court and appearances were made by counsel for the H, counsel for P1 and P2, and counsel for the independent legal representative of C for the purposes of the proceedings. I had earlier on 5 September 2018 made an order appointing a named employee of Legal Aid NSW as the independent legal representative of C.

6. [6]

   At the conclusion of the hearing, after cross-examination of the solicitor who made an affidavit in support of the application by the plaintiff and P1 and P2, and submissions by the parties and the independent legal representative, I was satisfied on the evidence of relevant expert medical opinion that the proposed surgery should occur on 6 September 2018 as planned. Given the time of the evening, I indicated that an ex tempore judgment would not be appropriate and that the matter was of such importance that it justified proper reasons being given. As will be apparent in this judgment, because I have already made a decision about the outcome of this matter, parts of my reasons are stated in the past tense which would ordinarily have been stated in the present tense.

7. [7]

   The substantive order that I made on 5 September 2018 was in the following terms:

Background

1. [8]

   The background to the proceedings was described in the affidavits of a legal practitioner employed by the New South Wales Ministry of Health on behalf of the H, filed on 4 and 5 September 2018.

2. [9]

   On 1 April 2018, C was born at 24+4 weeks’ gestation, with a birth weight of 680 g.

3. [10]

   P1, as a result of bleeding from a placental abruption, underwent an emergency caesarean section for placenta praevia.

4. [11]

   C required initial resuscitation and was intubated at two minutes of life. Soon afterwards, C was transferred to another hospital and placed in mechanical ventilation at four hours old.

5. [12]

   From 16 April 2018 to 16 July 2018, C underwent multiple surgical procedures, including repeated laparotomies for bowel obstruction, a surgical closure of patent ductus arteriosus, multiple laser surgeries of both eyes for retinopathy of prematurity stage 3, and an insertion of a Hickman line for intravenous access and to continue with total parental nutrition due to ongoing feed intolerance. Following medical advice, P1 and P2 consented to all of the procedures performed on C.

6. [13]

   On 23 July 2018, an ophthalmology review found retinopathy of prematurity stage 4 in both of C’s eyes.

7. [14]

   On 24 July 2018, a multidisciplinary family meeting occurred with P1 and P2, a neonatology team, and a paediatric surgeon. After considering the degree of C’s medical issues, a decision was made in the meeting to stop medical treatment and to redirect C to palliative care. On 27 July 2018, C was transferred to palliative care.

8. [15]

   On 20 August 2018, C was transferred to the H under the care of a doctor. C then made an unexpected recovery, and palliation ceased. In the H’s legal representative’s affidavit dated 4 September 2018 at par 20, C’s improved health was described in the following terms:

9. [16]

   The H has made this application on the basis that, due to the progression of C’s retinopathy of prematurity, C requires urgent surgery to stabilise the left eye and reattachment of the retina, to which P1 and P2 would not give their consent. C’s right eye has already progressed to total detachment of the retina.

10. [17]

    The Associate Professor who was scheduled to undertake the surgery was described by the H during the hearing as being one of two doctors in Australia who have the ability to conduct the surgery. That Associate Professor said the following about the surgery in an email dated 31 August 2018, which was forwarded to the legal representative of the H on 4 September 2018:

11. [18]

    It is apparent from the email by the Associate Professor that surgery would ideally have been undertaken a month ago, that Baby C’s right eye had already progressed to total detachment of the retina, and that the best result from the proposed surgery was expected to give Baby C "hand motion" or "counting fingers" level vision, which has been described as navigational vision.

12. [19]

    The affidavit of the legal practitioner for the plaintiff dated 4 September 2018 states the following about the surgery and associated risks at pars 22 to 28, which is largely a repetition of the email extracted above by the Associate Professor:

13. [20]

    During the hearing, the parties clarified that the risks stated in par 19 above are risks that may arise if the surgery is conducted. Without the surgery there was close to a 0% chance of reattachment of the retina. Counsel for the H said this meant, in plain terms, that without the surgery there was a 100% chance of blindness in C, and a 40% chance of navigational sight if the surgery was carried out.

14. [21]

    P1 and P2 withheld their consent to the surgery prior to and at the hearing on 5 September 2018. During the course of C’s admission to the H, when palliation had ceased, P1 and P2 were asked on multiple occasions by members of the medical team to consent to the retinal re-attachment surgery taking place, but they did not provide their consent.

15. [22]

    On 3 September 2018, the Ophthalmic Registrar asked P1 and P2 to consent to the surgery, which they did not give.

16. [23]

    On the evening of the 4 September 2018, after the plaintiff had approached me as duty judge and served the summons on P1 and P2, a meeting occurred between a general paediatrician (who I will call ‘DR1’), P1 and P2 and an after-hours registrar about the proposed surgery to C’s left eye. Additional attendees throughout the meeting were another after-hours registrar and a child protection consultant. During that meeting, P1 and P2 said they did not ultimately refuse consent and were not explicitly against the procedure, but they expressed concerns that there had been many different opinions and mixed messages regarding what was best for C.

17. [24]

    The notes from the meeting record the following about the concerns of P1 and P2:

18. [25]

    I have emphasised in this extract the parts of the notes where it is recorded that C’s parents did not state that they were definitely opposed to the surgery taking place. Rather, they were unwilling to give their consent for the reasons recorded in the notes.

19. [26]

    The notes from the meeting record the following about risk to C’s brain and anaesthetic risks:

20. [27]

    Notwithstanding that P1 and P2 withheld their consent to the surgery, it is clear from the evidence that P1 and P2 acted cooperatively with the medical team at all times, and held genuine and understandable concerns about C undergoing the proposed surgical procedure.

The hearing on 5 September 2018

1. [28]

   At the hearing, the primary relief claimed by the H was a declaration or order that the Court authorise the H by its staff to perform on C the ophthalmic surgical procedure known as pars plana vitrectomy. To that end, the central issue in the hearing was whether the proposed surgery was in the best interests of C, having regard to the risks involved in the surgery and the views of P1 and P2.

2. [29]

   The hearing on the 5 September 2018 was supposed to occur at 2:00pm, but was delayed until 3:20pm because counsel for the parties and P1 and P2 were in a telephone conference with medical doctors about the proposed surgery. No record of that telephone conference was provided to the Court, but counsel for the H said the following about the substance of the telephone conference:

3. [30]

   It was clear that the relevant doctors continued to support the proposed operation and the doctors’ unanimous support for the operation was not disputed by the parties.

4. [31]

   The solicitor for the H was cross-examined by counsel for P1 and P2. The effect of her evidence was that the H supported the surgery on the basis of all of the medical evidence received, and that the Court should order the surgery to occur. It was clear from the way she gave her evidence that she was limited in what she could say, and she would not give certain answers to questions about C without an evidential basis for doing so. To this extent it meant that her evidence, both in the affidavits and in the witness box, was largely a reflection of the evidence communicated to her by the medical doctors.

5. [32]

   Cross-examination occurred of each of P1 and P2. The position each took was the same as that stated in the file note of their conversation with the doctors on 4 September 2018. That is, P1 and P2 each expressed concerns that there had been many different opinions and mixed messages regarding what is best for C, and they were therefore not comfortable giving their consent to the surgery. At one stage during cross examination, P1 explained that they had been given a variety of different opinions regarding the opportunity to undertake eye surgery on C, and that P1 and P2 had received advice five weeks earlier that if the surgery was not done within a 48 hour window, C would become blind by the end of the 48 hour window, which P1 said did not occur.

6. [33]

   However, it is to be noted that in fact C’s right eye did proceed to total detachment of the retina, which provided some justification for the need to undertake surgery on C’s left eye before it progressed to the same stage.

7. [34]

   Following cross examination the parties made oral submissions about whether the proposed surgery should occur.

8. [35]

   The oral submissions for the plaintiff were in the following terms (T.22.35):

9. [36]

   Counsel for the independent legal representative adopted the submissions of the plaintiff and said the following (T.25.34):

10. [37]

    The oral submissions for the defendants were in the following terms (T.27.18):

Consideration

1. [38]

   It was not in dispute between the parties that the parens patriae jurisdiction of the Supreme Court is well established and that the Court has the power to order the surgery for C in the present circumstances: see Royal Alexandra Hospital for Children v J [2005] NSWSC 465, Re Paul [2008] NSWSC 960, at [2]; Re Bernard [2009] NSWSC 11, at [15] - [17]; Director-General Department of Community Services; Re Jules [2008] NSWSC 1193, at [7] - [8] and Re L 2 Fam CR (UK) 524.

2. [39]

   In Secretary Department of Health & Community Services v JWG & SMB (1991-2) 175 CLR 218 (Marion’s Case), the plurality stated the following, at 259:

3. [40]

   In Marion’s Case, Brennan J explained the underlying basis for the jurisdiction, at 266:

4. [41]

   The Court must, in exercising the parens patriae jurisdiction, ultimately consider the welfare and best interests of the child: see Re Bernard [2009] NSWSC 11 at [17]; Re Paul [2008] NSWSC 960 at [3]; Royal Alexandra Hospital for Children v J [2005] NSWSC 465 at [50]; Re Jules [2008] NSWSC 1193 at [15]; Minister for Health v AS & Anor [2004] WASC 286 at [19] - [21]; see also The Sydney Children’s Hospital Network v X [2013] NSWSC 368 at [10].

5. [42]

   The position as it appeared to the Court at the end of the hearing can be stated starkly. If C was not given the benefit of the operation, she would definitely be blind for life. If she had the operation, she had about a 40% chance of gaining navigational vision in one eye.

6. [43]

   C had experienced a tragic medical history to the point where she was moved to palliative care but she rallied and recovered to the point where her doctors came to reconsider the potential benefit of eye surgery that optimally would have been performed earlier but was abandoned as a result of the decision to place C in palliative care.

7. [44]

   The various doctors who have been treating C acknowledged the risks of surgery that have been set out above, but as I understood the evidence, the firm collective view of the doctors including the eminent surgeon who was to conduct of the surgery was that the potential benefit to C’s quality of life by reason of the possibility that she would gain navigational vision far outweighed the known risks, and that the proper medical course to take in all of the circumstances was to carry out the proposed surgery on C.

8. [45]

   C’s parents declined to give their consent to the operation being carried out, and they maintained that position during the hearing.

9. [46]

   It was absolutely plain that the position taken by P1 and P2 was genuine and considered and they had taken into account their parental responsibility for C’s health and future, and made their decision in the light of C’s medical history and what they saw to be the unreliability of medical assessments that had been made in the past in relation to C’s condition and the likely effect of various medical procedures that had been recommended and the adverse consequences that C had suffered as a result of the procedures to which she had been subjected.

10. [47]

    As I observed during argument (as recorded in the extracts from the transcript set out above) the present case required the Court to make a judgment that required the Court to imagine the difference between two different medical circumstances, being complete blindness and an ability to see through one eye at an navigational level, which was described during the hearing as an ability to count one’s fingers held out before one’s eyes. I have used the word “imagine” advisedly because in truth the process of imagination is beyond the capacity of a naturally sighted person.

11. [48]

    The Court was required to make an immediate judgment based upon its assessment of the evidence before it, which was in the circumstances unavoidably incomplete, and could not be tested in the usual way that would happen at a hearing of proceedings that had been conducted without the limitations imposed by dire urgency.

12. [49]

    That urgency arose out of what I understood to be the firm medical view that the passing of time had seen C permanently lose her sight in her right eye by a process likely to be imminently repeated in her left eye without the intervention of the surgery whose prospects of success were rapidly diminishing.

13. [50]

    Ultimately, I was persuaded to make the order set out above authorising the H to carry out the surgery on C for three reasons. The first was my assessment that C had the benefit of a highly-qualified multi-disciplinary medical team whose strong view, based upon the objective facts and circumstances outlined above, was that the proper medical course was for the surgery to be undertaken, and the potential benefit to C substantially outweighed the known risks, so that the performance of the operation was the proper medical course in the circumstances.

14. [51]

    The second reason was that, as I understood the medical evidence, it was to the effect that the particular concerns that were operative in convincing P1 and P2 to withhold their consent to the operation were unfounded. The medical opinion was not to the effect that there were no risks, but the particular surgery that was proposed was normally well-tolerated, C’s condition was relatively stable, and there was little neurological risk or anaesthetic risk. My understanding of the evidence was that the doctors had carefully considered the possibility of C suffering the recurring consequences of medical procedures that she had experienced earlier in her life when she was even more frail than at the time of the hearing.

15. [52]

    Thirdly, while I understood that P1 and P2 maintained their refusal to consent to the operation taking place, they were not utterly opposed to it but could not bring themselves to give their consent given their experiences and their own judgment concerning C’s life prospects, so that the ultimate decision might fall for determination by a third party.

16. [53]

    I placed the most serious weight and respect on the solemn right of parents to have the primary responsibility to make life and death decisions in respect of the health of their children, but ultimately that responsibility is not absolute as the existence of the Court’s parens patriae jurisdiction attests.

17. [54]

    Ultimately, accepting that the responsibility for making the decision was mine, I did my best to imagine the difference in life’s opportunities offered by the two courses that I had to choose from, and on the basis of my own imagination decided that, in the light of the considerations set out above, the prospect of C gaining the benefit of navigational sight was so much more preferable than inevitable blindness to warrant the Court giving authority to the H to carry out the operation on C.