The Hospital v T[2015] QSC 185

SUPREME COURT OF QUEENSLAND

The application for the matter to be heard in closed court

1. In this matter I have heard the proceeding so far in closed Court on the application of both parties to it.  The assumption, generally, for the conduct of the business of the Court is that it be conducted in open Court.  That is expressed in section 8(1)(b) of the Supreme Court of Queensland Act 1991 and long predates that statutory expression of policy.  Section 8 subsection (2) provides, however, that:

…the Court may, if the public interest or the interests of justice require, by order limit the extent to which the business of the Court is open to the public. 

2. It has been recognised for a very long time that applications of this nature in the parens patriae jurisdiction of the Court may be heard in private.  The issue was discussed in Scott v Scott [1913] AC 417 at 437 by Viscount Haldane LC and at page 483 by Lord Shaw of Dunfermline. 
3. Viscount Haldane described the Court’s jurisdiction when dealing with wards of Court by saying  that there the judge who was administering their affairs, in the exercise of what has been called a paternal jurisdiction delegated to him from the Crown through the Lord Chancellor, is not sitting merely to decide a contested question.  His position as an administrator as well as judge may require the application of another and overriding principle to regulate his procedure in the interests of those whose affairs are in his charge.
4. His Lordship went on to say that in the case of a ward of Court the Court is really sitting primarily to guard the interests of the ward.  Its jurisdiction is in this respect parental and administrative and the disposal of controverted questions is an incident only in the jurisdiction.  It may often be necessary, to attain its primary object, that the Court should exclude the public.  The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward. 
5. Similarly, Lord Shaw said about cases such as these:

The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognised that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs.

6. That is the starting point, if you like, and the default position in respect of applications such as these.  More recently, however, a single judge of the New South Wales Supreme Court in Director-General of Department of Community Services; Re Jules [2008] NSWSC 1193 at paragraphs [23] to [25] expressed different views.  Justice Brereton said that in his view:

…great caution is required before determining that proceedings, even of this type, should be conducted in closed court. It is one thing to make an order, as has been done in these proceedings (and there is no suggestion to the contrary) prohibiting the publication or disclosure of any information that would tend to reveal the identity of a party or a child, but it is quite another to order that the proceedings be conducted effectively in secret. The issues which typically arise in this type of case – whether they involve blood transfusions, vaccinations, compulsory treatment for anorexia nervosa, or the manifold other issues that arise – are generally of significant public interest, not merely out of curiosity but because all parents and the community as a whole have deep and abiding interest in the welfare of children. Proceedings such as these have a significant informative and educative function. It is important that what the Court does in this field be open to public knowledge, information and scrutiny.

7. His Honour went on to describe some proceedings in the Family Court as not being ones heard in closed Court, although there was a statutory prohibition on publication that would identify the parties, and concluded by saying that he did not:

…see why proceedings in the parens patriae jurisdiction, including for medical treatment orders, should as a general rule be heard in closed court.  There may no doubt be some cases in which that course is appropriate, but ordinarily sufficient protection of the child will be achieved by a non-publication order of the type to which –

his Honour had referred. 

8. There is much to be said for that approach, in my view, as proceedings in Court can serve an educative role in the public interest.  What concerns me in particular in this case, however, is that, because the application was originally filed inadvertently without attention being paid to the requirement in Practice Direction No 15 of 2013, that the Supreme Court registry be notified by the parties or their representatives that the material is subject to a legislative non-publication provision, it was available on the Court file able to be read by anybody, as Supreme Court files generally are. 
9. It seems clear that in this case members of the press accessed the file and that led to distressing invasions of the privacy both of the respondents and of the doctors who are treating the child, whom I shall call J in these reasons.  J is also only seven and a-half years old, unlike the 17 year old – close to 18 year old – in the case of Jules with which Justice Brereton was dealing.  It seems to me that because of the already unfortunate and intrusive publicity that has occurred, and because of the age of J, that it is appropriate in this case that the proceedings continue to be conducted in closed Court.  And I shall continue to do so. 

The substantive application

10. This is an application for a declaration that the applicant and medical practitioners and nurses acting on its behalf providing medical services to a patient identified as J be authorised to administer to him blood and/or blood products as may in their medical judgment be desirable or necessary according to good medical practice during a planned liver transplant procedure and/or during a post-operative period from that procedure. 
11. J is a seven and a-half year old, having been born in late 2007.  The applicant is a hospital which delivers hospital and health services under the Hospital and Health Boards Act 2011 (Qld).  J was referred to another hospital from a regional hospital in early 2008 for the investigation of jaundice, and it was discovered that he has a significant liver disease which is likely to require a liver transplant in the next two to three years.  Failing such a transplant death would be inevitable.  If a transplant is made it would be likely to cure his liver disease and reverse the significant symptoms from which he suffers already, and would significantly improve his quality of life. 
12. The available data suggest that 85 to 95 per cent of patients who have had such a transplant remain alive after five years, 80 to 90 per cent of them remain alive after 10 years and long term actuarial survival after transplantation in childhood is 72 per cent at 25 years.  J has been placed on a list as an appropriate candidate for transplant, but his case is not currently active because of an issue as to consent to authorisation for blood transfusion.  He and his parents are Jehovah’s Witnesses who object to blood transfusion on the basis that they believe blood is sacred and to agree to accept a blood transfusion would be to infringe a Biblical injunction to abstain from blood referred to in the Acts of the Apostles, Chapter 15 Verse 29.
13. They are, however, obviously concerned about their son and for his health and are willing to agree to a liver transplant.  They are anxious in that context to receive an assurance that every appropriate and reasonable blood conservation measure be used before the doctors resort to the administration of a blood transfusion.  They resist the order sought, but ask that if the Court makes the order against their wishes that it be made in a way that reflects the assurance written and provided in paragraph 21 of one of the medical witnesses’ affidavits, that every effort is made to minimise blood and blood product administration.  But, as the doctor said, transfusion was really part of the procedure and is required in approximately 95 per cent of transplant procedures, including blood that is salvaged from the patient and re-used. 
14. It seems clear, however, again from paragraph 19 of the same doctor’s affidavit, that standard procedure in the profession is to aim to keep blood product use to a minimum in all cases, but that in such a complex procedure circumstances can change rapidly, necessitating the use of any and all types of blood products.  This includes the use of red cells, plasma and platelets, as well as individual clotting factors. 
15. The first respondent concluded his submission by saying that, if an order is made against the respondents’ wishes, they understand that they must obey the law and will continue to bring J to the hospital for treatment. 
16. It is clear from the evidence that liver transplantation is a major operation and, as the applicant’s helpful written submissions point out, the smaller the patient the more severe the liver disease and the more unwell the patient at the time of transplant the greater the likelihood that  blood transfusion will be required during the operation.  That is derived from evidence from one of the other medical witnesses involved in the treatment of J. 
17. The overwhelming majority of paediatric liver transplant patients have required blood product support, and performing liver transplants without blood products is exceptional.  The submission was made that it would not be good medical practice to commence a paediatric transplant procedure without the expectation of a blood transfusion being necessary and without undertaking preparations for transfusion.  That is why the applicant wishes patient consent for the transplant also to be accompanied by consent to blood transfusion, which has not been forthcoming, obviously, from the respondents as parents of J in this case. 
18. Were the situation to arise where it was necessary to preserve J’s life, section 20 of the Transplantation and Anatomy Act 1979 (Qld) would authorise a medical practitioner to administer a blood transfusion to a child without parental consent if, in the opinion of the medical practitioner, a blood transfusion was necessary to preserve the child’s life and a second medical practitioner agreed or a medical superintendent of a base hospital consented to it upon being satisfied that a second medical practitioner was not available to offer an opinion.  That situation has not arisen yet, however, because it is arguably not yet a situation where the procedure is necessary to preserve J’s life. 
19. The concern of the applicant is that, if it does come to the time when a transplant is needed, that it would be a very difficult situation if this issue of consent to a blood transfusion was left undecided.  I can see good reason, therefore, for the view that, in the exercise of any clinical judgment, an issue such as this should be resolved before the procedure is anywhere near commencement. 
20. As one of the medical practitioners said in paragraph 26 of his affidavit, liver transplantations for paediatric patients are complicated procedures, and the doctor expressed his opinion that it was important that the transplant team have confidence that consent has been explicitly given for a blood transfusion and that there will not be any confusion about whether the transfusion is authorised or if it is required during the transplant procedure.  During the procedure, of course, issues may arise which require decisions such as whether to transfuse blood or not to be made immediately in order to preserve the safety and the life of J. 
21. The submissions refer to a number of other authorities where orders like this have been made in similar circumstances, and I do not need to traverse many of them.  What remains significant as White J pointed out in the Supreme Court of South Australia in Children, Youth and Women’s Health Services Inc v YJL (2010) 107 SASR 343 is that the welfare of the child is the Court’s first and paramount consideration and the Court must make its own independent judgment on any question which involves the interests of the child. 
22. The respondents have drawn my attention to a website speaking of a paradigm shift about the use of red blood cell transfusions and stating that they are now being considered harmful in some clinical situations, but the medical evidence before me from people who are experts in the field and qualified to express opinions is all one way:  that the ability to transfuse blood in cases like this is of the highest importance in order to help preserve the life of the patient undergoing such a procedure.  It is also significant, as Justice Basten pointed out in X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 at 308, paragraph [60]:

The interest of the state in preserving life is at its highest with respect to children and young persons who are inherently vulnerable, in varying degrees. 

23. His Honour went on to say at paragraph [61]:

Children and young people may be vulnerable in a different sense: they are dependent on others, in varying degrees, to satisfy their needs, whether physical, emotional or experiential.  In most cases and most of the time, society relies upon natural or adopted parents to achieve those ends.  In other cases, they may be achieved through foster care or institutional care.  In any case, a child or young person may be vulnerable if his or her interests conflict with those of otherwise appropriate carers. 

24. His Honour usefully then went on to consider the balancing considerations there between concepts of sanctity of life and the best interests of a young person, including balancing the issues raised by the religious beliefs of the child and the parents as matters which are clearly significant and should be taken into account.  But here, in effect, it seems to me appropriate to conclude that the sanctity of J’s life, in the end, is a more powerful reason for me to make the orders than is respect for the dignity of the beliefs so sincerely held by his parents and him. 
25. In those circumstances, therefore, it is appropriate, in my view, to make a declaration in the terms sought.  It does not seem to me to be appropriate to confine it in the manner submitted by the respondents by including any limiting words such as “every effort is made to minimise blood and blood product administration.”  The doctors have already indicated that that is standard procedure, but such a consideration must bow to the fact that circumstances may arise speedily, perhaps, during an exercise of clinical judgment in the middle of what is obviously a difficult procedure, which require the operation to be performed without a consideration of the nature required by those words from impeding the proper clinical judgment of the medical practitioners involved.  What I propose to do, therefore, is make a declaration in the terms sought. 

Order

26. I make the following orders:
    1. The minor referred to in this application not be referred to by name but by the reference “J”.
    2. The identity of J be supressed such that the full name of the child, the child’s family members and their occupations, the hospital, the child’s medical practitioners, the child’s school, the name of the parents’ lawyers, and any other fact or matter that may identify the child shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the parties’ real names) shall be released by the Court to non-parties without further Order of a Judge, it being noted that each party shall be handed one full copy of these Orders with the relevant details included, for provision to treating medical practitioners and to enable their execution.
    3. Subject to any contrary order of a Judge, the Court file is not available for search by any person who is not a party to the proceeding or a party’s legal representative in the proceeding.
    4. The affidavit and exhibits and written submissions and correspondence with the court by the parties upon which this application was based be placed in a sealed envelope and only be opened by order of a Judge.
    5. A declaration is made in the following terms:

The Hospital and medical practitioners and nurses acting on its behalf providing medical services to J are authorised to administer to J, blood and/or blood products as may, in their medical judgement, be desirable or necessary according to good medical practice during the planned liver transplant procedure and/or the post-operative period.