Townsville Hospital and Health Service v R (by her litigation guardian)
[2022] QSC 251
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- Townsville Hospital and Health Service v R (by her litigation guardian)[2022] QSC 251
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Townsville Hospital and Health Service v R (by her litigation guardian)[2022] QSC 251
Townsville Hospital and Health Service v R (by her litigation guardian)[2022] QSC 251
SUPREME COURT OF QUEENSLAND
CITATION: | Townsville Hospital and Health Service v R (by her litigation guardian) [2022] QSC 251 |
PARTIES: | Townsville Hospital and Health Service (applicant) v R (respondent) |
FILE NO/S: | BS No 11969 of 2022 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 5 October 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 October 2022 (delivered ex tempore) |
JUDGE: | Hindman J |
ORDER: |
(b) The identity of R be suppressed such that her name, the names of her family members and any other fact or matter that may identify R must not be published in any way and only anonymised reasons for judgment and orders shall be released by the Court to non-parties without further contrary order of the Court; (c) Subject to any contrary order of the Court, the Court file in this proceeding must not be made available for search or reviewed by any person other than R, her duly appointed lawyers, the applicant or its duly appointed lawyers or the amicus curiae; (d) The originating application, affidavits, exhibits, written submissions, and correspondence with the Court within this proceeding must be placed in a sealed envelope and may only be opened by further order of the Court, with the sealed envelope to be so marked; (e) The audio recording of this proceeding not be published or made available except to Auscript for the purpose of making a transcript for the Court, the applicant, R, the amicus curiae or their respective legal representatives. |
CATCHWORDS: | CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MISCELLANEOUS OFFENCES – ACTS WITH INTENT TO PROCURE ABORTION – where the respondent is a 16 year old child who is more than 22 weeks pregnant – where the applicant is the treating health service – where questions have been raised as to the pregnant child’s competence to consent to a termination of pregnancy – where the child wishes to terminate the pregnancy – where the termination of the pregnancy without court order may be unlawful – whether the child is Gillick competent and able to consent to the termination of pregnancy. FAMILY LAW AND CHILD WELFARE – THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION – CHILDREN – OTHER PARENTAL RESPONSIBILITIES – CONSENT TO MEDICAL TREATMENT – OTHER CASES – where the respondent is a 16 year old child who is more than 22 weeks pregnant – where the applicant is the treating health service – where questions have been raised as to the pregnant child’s competence to consent to a termination of pregnancy – where the child wishes to terminate the pregnancy – where the termination of the pregnancy without court order may be unlawful – whether the child is Gillick competent and able to consent to the termination of pregnancy. |
COUNSEL: | D Schneidewin for the applicant J Liddle for the respondent |
SOLICITORS: | Barry Nilsson Lawyers for the applicant Barry Nilsson Lawyers for the respondent |
AMICUS CURIAE: | Sally Robb Kent Blore |
- [1]HER HONOUR: The applicant is the Townsville Hospital and Health Service. The respondent is a 16-year old child identified in this proceeding as capital letter R. The child appears by her litigation guardian who is her mother. Ms Robb appears instructed by Crown Law as Amicus Curiae, on short notice, and I express gratitude for her doing so. Mr Blore of Crown Law has also very helpfully addressed me on human rights issues that arise in the matter. I thank both of them for their assistance.
- [2]R, the child, is pregnant. Her pregnancy was discovered on the 21st of September 2022, when she presented to the applicant’s emergency department with abdominal pain that was diagnosed as being caused by sepsis, likely secondary to a urinary tract infection. An ultrasound conducted showed the child to be approximately 22 weeks and four days pregnant on that day. The child denied knowing prior to that time that she was pregnant.
- [3]The child and her mother discussed the pregnancy and the child’s options with the medical staff of the applicant on the 21st, 22nd, 25th and 30th of September 2022. The child and her mother have consistently expressed a preference for terminating the pregnancy. The child’s treating medical practitioners support the request for a termination of the pregnancy. There is reference in the material to the child’s father and there is no reason from that material to think that he does not also have the preference for the child to terminate the pregnancy. Termination of pregnancy is governed by the Termination of Pregnancy Act 2018 (Qld), particularly section 6. There is evidence before me demonstrating that the requirements of sections 6(1) and (2) of the Act are satisfied.
- [4]However, the Court’s intervention has been sought in this proceeding because the applicant has a concern as to whether the child is Gillick competent to consent to the termination of pregnancy - that is, able to give informed consent to the contemplated medical procedure. If the child is not Gillick competent to consent to the termination of pregnancy, there is a risk that the performance of a termination of pregnancy, absent the Court making appropriate orders, would be unlawful, either as an assault or a trespass on the child.
- [5]A termination of pregnancy is a type of medical procedure in respect of which parents are unable to provide the required consent on behalf of the child. If the child is not Gillick competent to consent to the termination of pregnancy, the parens patriae jurisdiction of this Court is enlivened, and the termination of the child’s pregnancy can be authorised by the Court if the Court considers that to be in the best interests of the child. But if the child is Gillick competent, then it is for the child to decide whether she consents to the termination of her pregnancy, which is otherwise permissible under section 6 of the Termination of Pregnancy Act 2018 (Qld).
- [6]Therefore, I will first determine whether the child is Gillick competent. If she is, then it is not appropriate for the Court to exercise its parens patriae jurisdiction. That jurisdiction is properly exercised to protect children or others who are unable to look after their own interests. The relevant principles are discussed in the case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, and Marion’s Case [1992] 175 CLR 218 at 236 to 238. To preserve the confidentiality of the child, it is necessary for me to be less detailed than I otherwise would be, in providing particulars of the child, her family and the circumstances relevant to the assessment of her Gillick competence.
- [7]The child is a little over 16 years of age, she is an only child in a family with both parents present. She is enrolled at school but struggles academically. She does not plan to complete school to year 12 but instead proposes to undertake some vocational training in due course.
- [8]The matters that have caused the applicant to hold concern as to the child’s Gillick competence can be summarised as follows. First, the child presents as immature for her age in manner and speech. Second, there is a suggestion from the child’s mother of the child suffering from ADHD, with Ritalin previously prescribed to assist with that condition. Third, there is evidence of the child having learning difficulties associated with a mild language disorder. Fourth, the child has not been able to identify how she came to be pregnant and has claimed at various times that she either has never had sex or only had sex with a boyfriend once in January 2022 and not since, when the conception would have occurred around April 2022. Fifthly, the child has needed multiple explanations about what a termination of pregnancy would involve and has had some difficulty in understanding complex conversations.
- [9]None of the child’s treating practitioners express the view that the child is not Gillick competent; there is simply a question mark about her competency or a suggestion that it may be fluctuating.
- [10]I have carefully read the treating practitioners’ detailed notes of their various interactions with the child. Whilst the child may indeed present as immature for her age, I think the earlier interactions need to be viewed in the context of the shock of discovering her pregnancy. What is more important, I think, now, is whether the child, at this point in time, properly understands the options available to her, and the risk associated with each of those options, such that she can provide informed consent as to her medical treatment moving forward.
- [11]I have had the benefit of reading two documents which record the child’s own thoughts, a note from around the 22nd of April 2022, in which she records reasons why she does not want to have a baby now, and more importantly a recent statement, albeit undated and not sworn, but it is signed, in which she expresses that she has decided that she wants to terminate her pregnancy and why.
- [12]The signed statement makes clear that the child has appropriately considered the three options available to her: first, to have and keep the baby; second, to have and then surrender the baby for adoption; third, a termination of the pregnancy. The statement also shows that she has considered what each of those options would mean for her both in the long and short-term including both physically and emotionally and that she has considered the risks that are associated with each type of birth option. In addition, I have required the child to give oral evidence as to those matters in order to assess for myself as best as I can in conjunction with the other evidence that I have whether she is Gillick competent.
- [13]I record that in my view the child has a good understanding of the risks associated with the termination of pregnancy being contemplated. The risks both of it being carried out and not being carried out. She seems to have some understanding of what the long-term consequences would be. While her answers were short, and her voice was one that had a young quality to it, I think that she was answering honestly and truthfully that she in fact does understand what is being contemplated and what the consequences of the decision that she makes would be. I think she has sufficient maturity to consider those consequences for herself.
- [14]I am satisfied that the child is Gillick competent. I find that the child is competent to give informed consent to the termination of her pregnancy should she wish to give that consent. She has a sufficient understanding and intelligence to enable her to understand fully what is proposed in respect of the termination of pregnancy and the alternate options available to her.
- [15]I should note that there was raised in submissions, and I received an affidavit dealing with the facts that, (1) because the circumstances of the conception are not known at the moment, (2) there is a police investigation on foot, in the course of the termination of the pregnancy that is contemplated, there will be a removal or a collection of amniotic fluid and DNA, for the purpose of police investigations. From the affidavit that was tendered, it appears to me that it is not a separate medical procedure but something that will occur as part of the ordinary termination of the pregnancy that is being contemplated. I do not think it is necessary to find separate Gillick competence in respect of the collection of the amniotic fluid and DNA. As I am satisfied that the child is Gillick competent, it is for the child to consent or not consent to that step being taken, subject of course to any compulsory process that the police might impose such as a warrant for the collection of that genetic material.
- [16]So, I propose to make a declaration in the terms of paragraph 4 of the amended originating application. I am also prepared to make orders in terms of paragraph 1 of the amended originating application, which I will say something further about. Given the findings I have made but subject to hearing from the parties, it does not appear that the proposed orders in paragraphs 2 or 3 of the amended originating application are necessary. In respect of paragraph 1, which is effectively the suppression regime, I do consider it necessary in the interests of the welfare of the child, that her identity and that of her parents be concealed. As was recorded by Justice McMeekin, in the decision of Central Queensland Hospital and Health Services v Q [2017] 1 Qd R 87, [47].
- [17]The usual rule that all proceedings in a Court should be conducted in public should here give way to the paramount duty to do what is in the interests of the child. I refer to the cases cited at the footnote 13 of that decision.
- [18]Order 1, the time for service of this application is abridged. Order 2, R is Gillick competent for the purpose of providing consent to undergo the termination of her pregnancy and any associated medical procedure. Order 3,(a) the minor referred to in this proceeding not be referred to by name but by the reference R, (b) the identity of R be suppressed such that her name, the names of her family members and any other fact or matter that may identify R must not be published in any way and only anonymised reasons for judgment and orders shall be released by the Courts to non-parties without further contrary order of the Court, (c) subject to any contrary order of the Court, the Court file in this proceeding must not be made available for search or reviewed by any person other than R, her duly appointed lawyer, the applicant or its duly appointed lawyers or the amicus curiae. (d) the originating application, affidavits, exhibits, written submissions, and correspondence with the Court within this proceeding must be placed in a sealed envelope and may only be opened by further order of the Court, with the sealed envelope to be so marked, (e) the audio recording of this proceeding not be published or made available except to Auscript for the purpose of making a transcript for the Court, the applicant, R, the amicus curiae or their respective legal representatives. Those are the orders.