Prepared by Blaise Lyons
Principal Legal Officer
Legal & Regulatory Services
NSW Ministry of Health
March 2014
X & Ors v S...
Contents
 Facts and history of the proceedings
 Judgment
 Practical implications for clinical practice
 Broader implic...
Questions
 Does a mature person under 18 years of age have the right
to refuse treatment that conflicts with his or her p...
Facts
 X was a 17 year old who followed the Jehovah‟s Witness
(JW) faith.
 X had aggressive Hodgkin‟s disease.
 By Febr...
History of Proceedings
 On 22 March 2013, the SCHN filed a Summons in the
Supreme Court seeking orders allowing it to adm...
 X appealed the decision of Justice Gzell in the Supreme
Court.
 The Court of Appeal (Beazley P, Basten JA & Tobias AJA)...
Capacity to Refuse Consent
 General principle of the common law is that treatment
without consent is an assault, and ther...
 The Minors (Property and Contracts) Act 1970 provides
that a person “is not under the disability of infancy” when
aged 1...
 Section 174 of the Children and Young Persons (Care and
Protection) Act allows medical treatment to be provided to
a chi...
Gillick v West Norfolk and Wisbeach Area
Health Authority [1986] AC 112
 UK Department of Health issued a guideline stati...
Gillick Competence - Consent
 A minor is capable of giving informed consent when he or
she achieves a sufficient understa...
Gillick Competence - Refusal
 Whether “Gillick competent” or not, a Court can override a
young person‟s decision in order...
Was X Competent?
 The Trial judge accepted that X was competent to
determine whether or not to consent to the treatment.
...
Parens Patriae Jurisdiction
 The Supreme Court is empowered to intervene in decisions
about a minor‟s health care if it i...
Applicants‟ Case in X v SCHN
 A minor could have that the capacity to consent or refuse
medical treatment, if they could ...
Minister for Health v AS [2004] WASC 286
 15 year old JW („L‟) and parents refused consent to a blood
transfusion.
 L fo...
Walker v Region 2 Hospital Corp (1994)
116 DLR (4th) 477 (New Brunswick, Canada)
 Joshua Walker – 15 years and 9mths, dia...
AC v Manitoba (Director of Child and Family
Services) 2000 SCC 30 [2009]2 SCR 181
(Canada)
 AC - 14 years & 10 months, ad...
 “Individual states have approached the issue of adolescent
decision making in various ways, some enacting statutory
exce...
Outcome in X v SCHN
 The Court of Appeal confirmed that even if a young person
had capacity, the Court still also had a p...
 The Court‟s role is to balance the preservation of life and
individual autonomy, in reference to the particular
individu...
Exercise of Discretionary Power
 The Applicants also argued that the Justice Gzell failed to
take relevant factors into c...
Does this judgment mean that a mature minor could
never refuse treatment?
 A mature minor can consent or refuse their own...
Can I treat a minor without consent in an emergency?
 Section 174 of the Children and Young Person‟s Care and
Protection ...
 Part 5 of the Guardianship Act applies to minors aged 16
and 17 who do not have capacity to consent to medical
treatment...
Can I treat a minor in an emergency if they or their
parents previously objected and refused the
treatment?
 Section 174 ...
Can a minor make a valid Advance Care
Directive?
 Unlike an advance care directive written by an adult, an
advance care d...
UN Convention on the Rights of a Child
 Ratified by Australia in 1990.
 Formal recognition of young people as “right bea...
NSW Law Reform Commission 2008 – Young
People and Consent to Health Care
 Legislation should regulate decision making
pro...
 The legislation should provide that a competent
young person may accept or refuse health care, if in
the opinion of the ...
Other laws limiting young people‟s decision
making
 10- Age of criminal responsibility
 12- Instructing a lawyer in care...
Blaise Lyons, Principal Legal Officer, Legal & Regulatory Services, NSW Ministry of Health - Case Study:X & Ors v Sydney C...
Blaise Lyons, Principal Legal Officer, Legal & Regulatory Services, NSW Ministry of Health - Case Study:X & Ors v Sydney C...
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Blaise Lyons, Principal Legal Officer, Legal & Regulatory Services, NSW Ministry of Health - Case Study:X & Ors v Sydney Children’s Hospital’s Network (SCHN) [2013] NSWCA 320

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Blaise Lyons delivered the presentation at the 2014 Medico Legal Congress.

The Medico Legal Congress this is the longest running and most successful Medico Legal Congress in Australia, bringing together medical practitioners, lawyers, medical indemnity organisations and government representatives for open discussion on recent medical negligence cases and to provide solutions to current medico legal issues.

For more information about the event, please visit: http://www.healthcareconferences.com.au/medicolegalcongress14

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Blaise Lyons, Principal Legal Officer, Legal & Regulatory Services, NSW Ministry of Health - Case Study:X & Ors v Sydney Children’s Hospital’s Network (SCHN) [2013] NSWCA 320

  1. 1. Prepared by Blaise Lyons Principal Legal Officer Legal & Regulatory Services NSW Ministry of Health March 2014 X & Ors v SCHN [2013] NSWCA 320
  2. 2. Contents  Facts and history of the proceedings  Judgment  Practical implications for clinical practice  Broader implications?
  3. 3. Questions  Does a mature person under 18 years of age have the right to refuse treatment that conflicts with his or her personal religious beliefs?  Does the Supreme Court have the power to order that medical treatment be provided to a mature minor against their will?  Can the Court override the decision of a mature minor to refuse a blood transfusion?
  4. 4. Facts  X was a 17 year old who followed the Jehovah‟s Witness (JW) faith.  X had aggressive Hodgkin‟s disease.  By February 2013, the SCHN reached a point where cancer treatment could not continue without a blood transfusion.  X refused blood transfusions and his parents supported his decision.
  5. 5. History of Proceedings  On 22 March 2013, the SCHN filed a Summons in the Supreme Court seeking orders allowing it to administer blood, blood products and platelet therapy to X, and to carry out any ancillary treatment.  The proceedings were filed against X and his parents.  In the first judgment dated 28 March 2013, Justice Gzell made the orders sought, on the basis that the treatment was in X‟s best interests, and necessary to save his life.
  6. 6.  X appealed the decision of Justice Gzell in the Supreme Court.  The Court of Appeal (Beazley P, Basten JA & Tobias AJA) judgment was handed down on 27 September 2013.  The Applicants lost their appeal, which meant that the March orders allowing the transfusion still applied.
  7. 7. Capacity to Refuse Consent  General principle of the common law is that treatment without consent is an assault, and therefore both a criminal offence and a tort.  It is well established that a competent adult patient has the right to refuse treatment for any reason, even when that decision may lead to death (Hunter New England AHS v A [2009] NSWSC 761).
  8. 8.  The Minors (Property and Contracts) Act 1970 provides that a person “is not under the disability of infancy” when aged 18 or upwards.  Section 49 provides some defences to claims for assault and battery for medical treatment provided to minors where the minor, or parent or guardian has consented.  The Minors (Property and Contracts) Act does not create a power for minors to consent, but provides immunity from civil liability for medical practitioners. .
  9. 9.  Section 174 of the Children and Young Persons (Care and Protection) Act allows medical treatment to be provided to a child or young person without consent, if the treatment is necessary, as a matter of urgency, to save the life or prevent serious damage to the health of the child or young person.  Neither of these Acts excludes the possibility that a person aged less than 18 could consent to their own medical treatment, and does not mention refusal of treatment.
  10. 10. Gillick v West Norfolk and Wisbeach Area Health Authority [1986] AC 112  UK Department of Health issued a guideline stating that Area Health Services could prescribe contraceptives to girls aged less than 16 without the consent of their parents if acting in good faith to protect the girl against the harmful effects of sex.  Mrs Gillick sought a declaration that the guideline was unlawful as it was inconsistent with parental rights. Mrs Gillick was unsuccessful.
  11. 11. Gillick Competence - Consent  A minor is 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. (Marion's Case, Gillick).  Higher level of understanding required of young people than of adults.  This means there is no fixed age at which a young person is automatically capable of giving consent.
  12. 12. Gillick Competence - Refusal  Whether “Gillick competent” or not, a Court can override a young person‟s decision in order to avoid a risk that might have irreparable consequences or that is disproportionate to the benefits of taking such a risk.
  13. 13. Was X Competent?  The Trial judge accepted that X was competent to determine whether or not to consent to the treatment.  That is, he had a sufficient understanding and intelligence to enable him to understand fully what was proposed.  Gillick held that a parent‟s power to consent to medical treatment on behalf of his or her child terminates once the child‟s capacity and maturity develops to the point at which he or she is legally competent, but didn‟t consider whether the Court‟s power also diminished.  If X is competent, does the Court have any role in the decision?
  14. 14. Parens Patriae Jurisdiction  The Supreme Court is empowered to intervene in decisions about a minor‟s health care if it is necessary to do so to protect the minor‟s best interests.  Developed from the notion of a power, originally entrusted in the King to protect those unable to take care of themselves.  “A safety net to protect young people from long term consequences of decisions which they may regret at an age of greater maturity.”
  15. 15. Applicants‟ Case in X v SCHN  A minor could have that the capacity to consent or refuse medical treatment, if they could demonstrate decision making capacity, or “Gillick competence”; and  That the parens patriae jurisdiction of the Supreme Court only applied in the case of incompetence; Therefore, if a young person had capacity to consent, (or refuse) the Court had no jurisdiction to override that decision.
  16. 16. Minister for Health v AS [2004] WASC 286  15 year old JW („L‟) and parents refused consent to a blood transfusion.  L found to be of sufficient maturity and intelligence to understand the nature and implications of his decision.  “…The Court‟s power to countermand the wishes of a child patient or parent is to be exercised sparingly and with great caution…..The justification for overriding his wishes and that of his parents is that on the evidence his health and even his survival are seriously at risk unless steps are taken to give him a transfusion if the need arises.”
  17. 17. Walker v Region 2 Hospital Corp (1994) 116 DLR (4th) 477 (New Brunswick, Canada)  Joshua Walker – 15 years and 9mths, diagnosed with acute myeloid leukaemia and refused blood transfusions.  New Brunswick Province‟s Medical Consent of Minors Act stated that consent of a minor aged less than 16 was effective if a medical practitioner certified that minor had capacity and that the decision was in the minor‟s best interests.  Not persuasive authority in NSW.
  18. 18. AC v Manitoba (Director of Child and Family Services) 2000 SCC 30 [2009]2 SCR 181 (Canada)  AC - 14 years & 10 months, admitted with lower gastro- intestinal bleeding and as a JW, refused blood transfusions.  Transfusion was ordered and AC recovered. Parents complained about the order, saying it should not have been made because AC had capacity, and because it infringed her rights under the Canadian Charter of Rights and Freedoms.
  19. 19.  “Individual states have approached the issue of adolescent decision making in various ways, some enacting statutory exceptions to the default presumption of incapacity, and some embracing the common law “mature minor” doctrine to varying degrees. As in the UK and Canada, no state court has gone so far as to suggest that the “mature minor” doctrine effectively reclassifies mature adolescents as adults for medical treatment purposes.”  “…while courts have readily embraced the concept of granting adolescents as degree of autonomy that is reflective of their evolving maturity, they have generally not seen the „mature minor‟ doctrine as dictating guaranteed outcomes, particularly where the consequences for the young person are catastrophic.”
  20. 20. Outcome in X v SCHN  The Court of Appeal confirmed that even if a young person had capacity, the Court still also had a power to review and override that decision.  The Court can impose a limit on the power of a child, or parent‟s ability to make treatment decisions.
  21. 21.  The Court‟s role is to balance the preservation of life and individual autonomy, in reference to the particular individual.  The trial judge decided that the sanctity of life was a more powerful reason that respect for the dignity of the individual.  Court of Appeal also said that the interest of the state in preserving life is at its highest in respect of children and young persons who are inherently vulnerable, in varying degrees.
  22. 22. Exercise of Discretionary Power  The Applicants also argued that the Justice Gzell failed to take relevant factors into consideration, or give certain factors sufficient weight.  However, the applicant‟s age and capacity was considered, as was the significance of his faith.  Age is not necessarily determinative. Experience is also relevant and X had been “cocooned in his faith”.  Religious belief is a factor which a Court will accord respect and weight, but not necessarily treat as determinative.
  23. 23. Does this judgment mean that a mature minor could never refuse treatment?  A mature minor can consent or refuse their own treatment, however, what the case of X confirmed is that a minor‟s decision can be reviewed and overturned by the Court, if the decision has significant consequences for the minor and there is a concern that the decision is not in the minor‟s best interests.  A parent‟s decision to consent or refuse treatment on behalf of their child can also be reviewed by a Court, if there is doubt as to whether the parent(s) are acting in the best interests of their child.
  24. 24. Can I treat a minor without consent in an emergency?  Section 174 of the Children and Young Person‟s Care and Protection Act allows a medical practitioner to carry out medical treatment on a child (15 or under) or young person (aged 16 or 17) without the consent of the child or young person, or a parent of the child or young person, if the medical practitioner is of the opinion that 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.
  25. 25.  Part 5 of the Guardianship Act applies to minors aged 16 and 17 who do not have capacity to consent to medical treatment. Pursuant to the Guardianship Act, 16 and 17 year olds can be treated without consent, if the treatment is necessary, as a matter of urgency to save the patient‟s life, or to prevent serious damage to the patient‟s health.
  26. 26. Can I treat a minor in an emergency if they or their parents previously objected and refused the treatment?  Section 174 the Children and Young Person‟s Care and Protection Act provides a medical practitioner with authority to treat a minor in an emergency.  However, in some instances (as in the case of X v SCHN) the various treatment options will be clear well in advance of the situation requiring urgent medical intervention. In these circumstances, ideally, treatment options should be discussed with the minor and / or the parent(s) before the situation becomes an emergency. In some circumstances, it will be appropriate to obtain a Court order to provide guidance as to whether the treatment can be provided before the situation deteriorates into an emergency.
  27. 27. Can a minor make a valid Advance Care Directive?  Unlike an advance care directive written by an adult, an advance care directive written by a minor will not necessarily be legally binding. An advance care directive written by a minor will be treated in the same way that a minor‟s consent or refusal is treated – that is, it may be overridden by parents, or the Court.  An advance care directive written by a minor could also be overridden in an emergency situation.  In some circumstances, where a mature minor has prepared a written advance care directive, it will be appropriate to obtain a Court order allowing the treatment to be provided before the situation deteriorates into an emergency.
  28. 28. UN Convention on the Rights of a Child  Ratified by Australia in 1990.  Formal recognition of young people as “right bearers.”  Article 12(1) of the Convention on the Rights of a Child provides that a child has the right to be heard and that the views of the child be given due weight in accordance with the age and maturity if the child.
  29. 29. NSW Law Reform Commission 2008 – Young People and Consent to Health Care  Legislation should regulate decision making processes for young people‟s health care, “including when a young person‟s parent, legal guardian or care giver is legally entitled to override a young person‟s decision about his or her health care.”
  30. 30.  The legislation should provide that a competent young person may accept or refuse health care, if in the opinion of the health practitioner offering the health care, the young person understand the information that is relevant to making a decision and appreciates the reasonably foreseeable consequences of that decision.  The developing autonomy of the young person should be acknowledged
  31. 31. Other laws limiting young people‟s decision making  10- Age of criminal responsibility  12- Instructing a lawyer in care proceedings  16- Consent to have sex, driving (L‟s)  17- Driving (Ps)  18- Consent to marriage, alcohol, cigarettes

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