Case Note: Consent to Treatment and the Best Interests of the Child

Victorian Supreme Court authorised the administration of a blood transfusion to a Jehovas Witness child despite the objection of the child and her mother.

Mercy Hospitals Ltd v D1 [2018] VSC 519

Introduction

In this case, the Victorian Supreme Court made an order permitting practitioners employed by Mercy Hospitals Ltd (Mercy Hospitals) to administer blood products, or a blood transfusion, to a pregnant 17-year-old Jehovah’s Witness (D1), over D1’s objections, and the objections of her mother (D2).

The primary issue before the Court was whether there was any legal authority that permitted the practitioners to administer blood products to a child (D1) in the absence of her, and her mother’s consent.

Macaulay J held that the Supreme Court’s welfare jurisdiction permitted the Court to authorise the administration of blood products. In so holding, his Honour discussed the interaction of that jurisdiction, the Human Tissue Act 1982 (Vic) (HT Act), and the new Medical Treatment Planning and Decisions Act 2016 (Vic) (MTPD Act).

The case also provides some helpful guidance on managing difficult clinical situations involving the administration of blood products to children who cannot, or will not, consent and where a substitute decision-maker cannot, or will not, consent.

Facts

D1 first approached a hospital operated by Mercy Hospitals (which will be referred to as the Hospital) in March 2018 to book the birth of her child.

After making her booking, D1 had contact with the Hospital’s social work department which, by July 2018, discovered that D1 and her family were adherents of the Jehovah’s Witness faith. D1 later told practitioners that she had been attending Kingdom Hall (the name given to a Jehovah’s Witness church) since her time in a refugee camp and that she had continued attending Kingdom Hall once settled in rural Victoria.

This was significant because a tenet commonly held by Jehovah’s Witnesses is to abstain from “eating” blood, a concept that includes transfusion of blood, or blood-based products. As patients, Jehovah’s Witnesses typically refuse to receive these products, limiting the options available to their treating practitioners, who may be frustrated because they do not share the same faith.

Despite the significance of her religious status in relation to her medical care, D1 had not indicated her faith on her patient intake form. Nor did D1 carry a “blood card” (a document commonly carried by Jehovah’s Witnesses that purports to refuse all blood products and transfusions).

Shortly after this point, D1’s beliefs became known to her treating medical practitioners, who encouraged her to clearly set out a plan for her delivery. On 15 August 2018, the Hospital’s Director of Maternity Services, Dr van Dam, was scheduled to discuss this plan with D1. Also, in attendance were D2 and a member of the Jehovah’s Witness community: Jill.

According to the evidence before the Court, Jill often responded on D1’s behalf and explained that D1 had not indicated her faith on the patient intake form, and did not carry a blood card, because ‘D1 had only just started her studies’ and had not been baptised into the faith. Accordingly, she was not permitted to carry a blood card and ‘did not yet feel comfortable’ stating her religion on the form. Apparently, the remainder of this discussion was postponed because D1 was ‘not yet ready to discuss’. She was given a template advance care directive (ACD) in the form required by the MTPD Act to complete in her own time, though it does not appear that it was ever fully completed.

Following these discussions, Dr van Dam did not consider that D1 had decision-making capacity to refuse all blood products. She outlined the basis of her views in a report to the effect that:

  • she had discussed the risks of blood loss associated with pregnancy, including death, with D1;
  • D1 was exposed to risks of bleeding because this was her first pregnancy, she had a large baby (in the 88th percentile for growth) and she was relatively small;
  • D1 ‘only gave one answer’: “I do not want blood”;
  • her opinion was that D1 did not appreciate the consequences of refusing all blood products; and
  • D1 appeared to want to please D2 and Jill by refusing blood products.

With doubts over D1’s capacity, Dr van Dam subsequently referred D1 to be assessed by a child psychiatrist at the Royal Children’s Hospital, A/Prof Paul, for a second opinion on D1’s decision-making capacity. A/Prof Paul also prepared a report based on a single consultation with D1. D2 and Jill were not present in the room for this consultation. In his report, A/Prof Paul explained his view that:

  • D1 had a clear and consistent belief that she should abstain from blood products;
  • D1 freely held this belief, but that it was possible that she was dependent on her family and community to make decisions regarding her life (and that this may have been influenced by her knowledge that her community did not approve of pre-martial sexual relationships); and
  • nevertheless, he did not feel that D1 could weigh up the consequences of her refusal, including upon herself, her unborn child and her family.

As such, when D1 asked A/Prof Paul to witness her ACD refusing the administration of blood products, he refused; presumably because he did not consider her to have decision-making capacity as required by the MTPD Act.

Subsequently, D1 agreed to have labour induced at the Hospital, but withheld her consent to the administration of blood products.

Mercy Hospitals then applied to the Supreme Court seeking a court order authorising the administration of blood products to D1.

Issues

The primary issue in this case was whether the Court had the power to authorise Mercy Hospitals’ practitioners to administer blood products to D1 in the absence of her, and her mother’s, consent.

Orders available in welfare jurisdiction

It is clear from established legal authority that the Court had jurisdiction to make such an order in its “welfare” jurisdiction (also called the parens patriae jurisdiction), which exists as part of the State’s responsibility to protect the interests of those who cannot care for themselves, including children and those without capacity. This jurisdiction is an unusually broad and wide-ranging one that allows State and Territory Supreme Courts (and the Family Court) to make orders in the best interests of the child.

This jurisdiction has been held to permit courts in other Australian jurisdictions to make orders authorising the administration of blood products to a 17-year-old Jehovah’s Witness who was 4 months shy of his 18th birthday and who had been determined to be competent (X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294).

So, it was clear that the Supreme Court of Victoria theoretically had the power to make an appropriate order, even if D1 was competent, provided that Macaulay J could be satisfied that it was in her best interests.

However, D1 – who was represented in the proceeding – put 2 arguments resisting Macaulay J making the order. The first was technical, the second was on the merits.

Do HT Act and MTPD Act limit the Supreme Court’s jurisdiction?

D1’s first argument was that the HT Act and the MTDPA Act restricted the Court’s welfare jurisdiction because those Acts overlapped with the powers of the welfare jurisdiction. In short, D1 argued that:

  • section 24 of the HT Act – which permits the administration of blood products to a child (a person under the age of 18 who is not married) if that treatment is ‘reasonable and proper’ for the child’s condition and the child is likely to die without the blood transfusion – already authorised a transfusion to be administered if she was likely to die. As such, the hospital already had the power to administer blood transfusions without D1’s consent and it was inappropriate to make the order; and
  • the advent of the MTPD Act, which allows children to make binding ACD refusing medical treatment if they have decision-making capacity, in March 2018 meant that the Court’s welfare jurisdiction was limited.

Macaulay J rejected these contentions. As for the MTPD Act, his Honour pointed out that ‘no occasion arises to consider if and to what extent a binding ACD should affect [the] Court’s exercise of its protective jurisdiction’ as D1 had not made any binding ACD. That said, Macaulay J noted that there was no suggestion in that Act (or in its supporting materials) that it was meant to restrict the Supreme Court’s jurisdiction.

As for section 24 of the HT Act, his Honour held that that provision and the welfare jurisdiction ‘do not cover identical territory’ and, therefore, that the HT Act did not limit the welfare jurisdiction for 2 reasons. First, because provisions such as section 24 ‘existed to avoid the cumbersome procedure of an application to the court’. Second, because section 24 is concerned with physical survival (remembering that it is only in play where the child is likely to die), while the welfare jurisdiction is concerned with all of the child’s interests, including their medical, spiritual and personal interests. As such, section 24 of the HT Act complemented the welfare jurisdiction and did not restrict the Court’s ability (or, as the result shows, its willingness) to make the orders sought by Mercy Hospitals.

Would order be in D1’s best interests?

As mentioned above, the welfare jurisdiction is concerned with the best interests of the child. Macaulay J explained that this is a broad concept and that the Court ‘should be concerned with a child’s spiritual welfare as much as it is with the child’s physical welfare’. Consequently, his Honour opined that that ‘in an appropriate circumstance’ respect for an individual child’s religious conviction may justify respecting their choice to withhold consent to lifesaving treatment on religious grounds. This is consistent with the principles applying to adults, who (provided they are competent) may refuse treatment for any reason at all.

However, his Honour noted that the State has an interest in preserving the life of children in a vulnerable position, and that ‘the particular attributes of the child must remain in clear focus’.

In resolving these competing interests in D1’s case, Macaulay J said:

On the authorities, I should consider whether she has sufficient understanding and intelligence to enable her to understand fully what is proposed and the consequences of her decision. I should form a view about the extent to which her choice is a true reflection of who she really is, and what her beliefs really are, as opposed to the product of other forces. That should lead me to pay attention to the demonstrated conviction of the beliefs that she says are driving her decision, as best I can.

Weighing the evidence before him (including Dr van Dam and A/Prof Paul’s reports), Macaulay J went on to say:

… I am not satisfied D1 does have a sufficient understanding of the consequences of her choice. I am not convinced she has based her choice on a maturely formed and entrenched religious conviction. Put another way, I am not convinced that overriding her expressed choice would so rob her of her essential self as to outweigh the loss she would suffer through losing her life or sustaining a catastrophic injury. In summary, I do not consider that allowing her, in effect, to choose to die or only survive with serious injury is in her best interests taking into account a holistic view of her welfare (physical, spiritual and otherwise). [emphasis added]

In closing, Mercy Hospitals undertook to use all strategies other than blood transfusions to avoid D1’s death or serious injury before using a blood product-based treatments. As such, Macaulay J made orders authorising the administration of blood products subject to that undertaking.

What if D1 had had a binding ACD?

As subscribers will be aware, the recently passed MTPD Act allows children with decision-making capacity to make a binding refusal of treatment using an ACD containing an instructional directive in the MTPD Act form.

As mentioned above, D1 had not made an ACD under the MTPD Act refusing the administration of blood products. It appears from the judgment that the ACD was only partially completed and that, in any event, she could not find a practitioner to witness it so that it was in the form required by the Act. While Macaulay J said that this meant that there was no occasion to consider the effect of that ACD, his Honour observed that the MTPD Act’s provisions which give ACDs (in the statutory form) legally-binding effect ‘do not affect the operation of s 24 of the [HT Act]’.

His Honour went on to say that, even if the child gave an instructional ACD to refuse consent, then section 24 of the HT Act would authorise the administration of blood products ‘in order to save the child’s life without rendering the hospital criminally liable’. The comments are not binding on other courts but are highly persuasive.

Compliance Impact

This case demonstrates that, in an appropriate case, a superior court can make an order permitting the administration of medical treatment to a child over the objections of the child and their parents. However, such orders are only available where it is in the child’s best interests, including their spiritual interests.

Accordingly, orders like those in this case may not be available in respect of children who have long-held and fixed religious beliefs against particular kinds of medical treatment.

In similar cases involving children who refuse blood transfusions (and whose parents will not consent), practitioners have the option of:

  • respecting the child’s wishes if the child is Gillick-competent. Though if this is the case, an ACD containing an instructional directive refusing treatment under the MTPD Act should be obtained after seeking legal advice in order to rely on the protections furnished by that Act;
  • relying on section 24 of the HT Act to administer blood transfusions contrary to the child’s wishes if, amongst other things, the child is likely to die (noting that Macaulay J strongly suggested that this provision could also be relied on if a child has an ACD in place); or
  • seeking an order from the Supreme Court in its welfare jurisdiction permitting the administration of treatment to the child.

Of course, reliance on any of these options should be preceded by open and frank communications with the patient and their family members in order to ensure that the rights and interests of the patient are respected.

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