Gold Coast Hospital and Health Service v D
[2024] QSC 300
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- Gold Coast Hospital and Health Service v D[2024] QSC 300
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Gold Coast Hospital and Health Service v D[2024] QSC 300
Gold Coast Hospital and Health Service v D[2024] QSC 300
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
SULLIVAN J
No 9548 of 2024
GOLD COAST HOSPITAL AND HEALTH SERVICEApplicant
and
DRespondent
BRISBANE
1.33 PM, MONDAY, 29 JULY 2024
DAY 1
JUDGMENT
HIS HONOUR: This is an application which has been brought by the Gold Coast Hospital and Health Service on behalf of its staff who have been asked to perform a surgical termination of the pregnancy of a minor, who will be referred to as D. D is currently 15 years old and had become pregnant whilst she was 14 years of age.
In this proceeding, I have received affidavit material from the mother of D, the father of D, a treating obstetrician, a child psychiatrist, a midwife and a social worker, all of whom have had contact with D, either through her life or during this pregnancy.
The hospital seeks orders from the Court in a number of respects. The first is it seeks a declaration one way or the other of as to whether D is Gillick competent. Secondly, on the assumption that D is not Gillick competent, it seeks orders from the Court in its parens patriae jurisdiction to authorise the termination of the pregnancy. Those orders are necessary because the hospital staff believe that D lacks the requisite capacity to consent to the termination herself and the termination is the type of procedure that D’s parents cannot consent to on her behalf.
D appears by her litigation guardian who is her mother. D’s father has also been notified of the application and the orders sought. He has indicated, in an affidavit, that he consents to the termination.
The medical and midwifery staff who have been consulted with, and themselves interacted with D, also agree that a termination is in the best interests of D and have expressed views that D lacks capacity in making the decision in relation to the termination.
A third issue has arisen where additional relief was sought by D’s mother for an intrauterine device, known as an IUD, to be inserted at the same time as the termination. This would be a device which would achieve a contraceptive effect for a period of time, but would not be a permanent sterilisation. Evidence that addressed this issue was also led in relation to that device over another form of contraception, being the Implanon insertion.
There is a question as to whether that is something which the mother and the father of D could consent to in any event. In order to overcome any residual concern in respect of that matter, I will deal with that issue on the same basis. I will start by firstly looking at Gillick competency and then make a decision regarding whether it is in the best interests of the child for it to be done.
Turning then to the facts of this case.
D is a female born in 2009 and has recently turned 15 years. The current pregnancy appears to have been intended by D who was in a relationship with a 14-year-old boy. She had tried to conceive and was secretly taking pregnancy tests. The relationship with the 14-year-old boy has ended as a result of the pregnancy when his family was informed of it.
Can I turn then to the first issue, which is the Gillick competency issue.
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: see Gillick v West Norfolk Area Health Authority [1986] AC 112, approved by the High Court in Secretary, Department of Health and Community Services v JWB and SMB [1992] 175 CLR 218, particularly at 237.
The issue and legal framework for this application is, first, is D capable of giving consent or refusing consent in respect of a surgical procedure or, alternatively, a medical procedure which is proposed to terminate her pregnancy. A medical procedure, including a proposed termination, may be an assault or trespass to the person and, so, unlawful, unless performed with the patient’s informed consent.
Where a child is incapable of giving valid consent or, I might add, refusal to a medical treatment, the child’s parents, as guardians, generally may consent to most ordinary medical treatments on behalf of their child. There is a special category of procedure though for which a parent’s consent on behalf of child is insufficient. This category includes a termination of a pregnancy. In that respect, see Central Queensland Hospital and Health Services v Q [2017] 1 QR 87, at paragraph 20, citing with approval the earlier decision of the State of Queensland v B [2008] 2 Qd R 562, particularly at 15, per Wilson J.
I turn then to a brief summary of the evidence in relation to the capacity issue involved in the Gillick competency argument. As to D’s capacity, D’s mother states, inter alia, that D has been diagnosed with autism spectrum disorder, anxiety, ADHD, a language disorder, dysgraphia and dyscalculia, as well as dealing with speech and comprehension issues. She records it has been said by her health professionals that D has the mental capacity of a child much younger than her age.
The evidence is that D is highly reliant on her mother for basic needs. For example, she requires prompting to brush her teeth daily. However, her mother notes that she, on certain occasions, walks to school which is a few streets away. At school, D is in the Special Education Program with limited access to mainstream classes. She has a teacher’s aide to assist her in her education. Her mother proffers the view that D has a learning age of a grade-four student, despite the fact that she is now 15 years of age.
D’s mother must give D instructions in single-sentence form. She must give D step- by-step instructions to go into a shop and pay for an item. D’s mother does not consider that D is competent to use sharp or hot kitchen items. D’s mother expresses the view that she does not think that her daughter has the capacity to make a decision in relation to the termination of her pregnancy.
In that respect, D’s mother states that D’s decision to terminate or keep her pregnancy fluctuates multiple times a day and even within the same conversation. When D says she wants to keep the baby, she talks about having a baby to cuddle. When she wants to terminate the pregnancy, D talks about wanting to go back to normal. D talks daily about wanting to return to school and go to Movie World on the weekend. D’s mother gives evidence that D had said she wanted a baby to cuddle and was excited by the prospect of being bought a pet to cuddle instead. I should note that D also spoke to the child psychiatrist about getting the pet to cuddle.
D’s capacity to consent to the termination was considered by her treating obstetrician and gynaecologist in a meeting in July 2024. That interaction with D was limited due to her lack of engagement with him and the fact she did not respond to his direct questions. During the interaction that the doctor did have with D about what it meant to terminate a pregnancy, she provided limited responses with single-word answers. She did not articulate any clear understanding of what it meant to be pregnant or to terminate a pregnancy by any means. The doctor was not satisfied that D understood the concept or what was being proposed and provided an opinion that D demonstrated the intellectual capacity of a child much younger than her chronological age, although the doctor did specifically identify that he was not a paediatrician and could not provide an expert opinion on that issue.
D’s capacity was also considered by a child psychiatrist who met D in July of 2024. The doctor’s assessment was that D was able to voice that she wanted to continue with the pregnancy. However, this was in the context of the doctor forming the view that D did not understand the options explained to her or the risks or benefits of each option. Those options had included the termination, the carrying of the child to full term, and then giving birth and options which flowed from that. The report of the child psychiatrist stated in part:
Detailed ongoing struggle with conflicting emotions surrounding the pregnancy, including juggling other’s views that she should terminate the pregnancy, citing that she would not have the resources or ability to care for the child, and her own wish to keep the pregnancy. D voiced that she was unable to understand what had been explained to her by the medical team in terms of options regarding termination earlier in the week and could not recall what those discussions entailed.
The report also identified that the child psychiatrist considered that D did not appear to be able to retain or weigh up information in a manner consistent with a considered choice. The fluctuation in her expressed decisions suggested an instability of capacity were it present. Cognitively, D was alert, orientated and able to attend to review. There was a notable mismatch between her chronological and mental age, suggesting the presence of an intellectual disability observed during interactions. There were limitations in adaptive behaviours, conceptual, social and practical skills. This was substantiated by the developmental history and observations that indicated a delay in meeting developmental milestones, communication difficulties requiring therapist intervention at a young age, learning difficulties, social difficulties, difficulties with daily living skills, requiring extensive support at school and at home. All of those observations were entirely consistent with the affidavit evidence of the mother of D.
D’s capacity was also considered in a practical way by the midwife who had been the main point of contact with D and her mother. The midwife was present at the consultation with the treating gynaecologist in July 2024 and recalls the doctor asking D her understanding of what being pregnant and having a baby meant, and D explained this would mean she would have to change seven nappies a day.
In July 2024, the midwife also attended the consultation with D, D’s mother and a social worker. At that consultation, she notes that D explained that she was at the consultation to receive help for her pregnancy and to end the pregnancy. D indicated she understood she was 11 or 12 weeks pregnant and explained she wanted to terminate her pregnancy so she could go back to school. D shared that she would like to have a baby so she could have cuddles and take the baby out for walks. D stated she did not want to have the baby or give it up for adoption. D became tearful after discussions about the termination procedure. She explained half her brain wants to keep the baby, and the other half of her brain wants to end the pregnancy.
Following her interactions with D, the midwife formed the view that D did not have the maturity or understanding to make an informed decision because of the complexity of the procedures and the benefits and risks which had to be weighed, nor, in her view, did D fully comprehend the consequences of her decision regarding her reproductive health and needs support in making such a significant choice.
The social worker’s evidence was broadly in accordance with the midwife’s evidence. Those two witnesses did not purport to be medical experts, but in a practical way were describing what they heard and saw at the conferences they attended, and they do have a practical expertise in dealing with both pregnant women and young persons.
In my view, the evidence points all one way. D does not have the Gillick competency. She has not achieved a sufficient understanding and intelligence to enable her to understand fully what is proposed in terms of her options both to keep the baby or, alternatively, to terminate the pregnancy.
I accept the medical evidence but also the evidence of the mother that she is a person whose intellectual capacity is well below her chronological age, and that is reflected from the observations of her in relation to a cognitive disability which manifested from about nine months of age through to her present position as a 15-year-old.
Having concluded that D is not Gillick competent, I must move onto the second task and that is the exercise of the parens patriae jurisdiction. The parens patriae jurisdiction was described in a way which all parties submitted that I could accept in the decision of the State of Queensland v Alyssa Nolan [2021] QSC 174. In that decision, Chesterman J (as his Honour then was) spoke of the parens patriae jurisdiction in these terms:
The jurisdiction appealed to is that which was formally vested in the Sovereign but was transferred in centuries past to the Lord Chancellor and from him personally to the Courts of Chancery and then to those courts which, like the Supreme Court exercise the jurisdiction of that court. It is exercised to protect the person and property of subjects, particularly children who are unable to look after their own interests. The court has a wide power in relation to the welfare of infants. The dominant factor in the exercise of the jurisdiction is always what is in the best interests of the child in question. In a passage approved by Brennan J in Marion’s case (1991) 175 CLR 218 at 280 it was described by Lord Esher MR in R v Gyngall [1893] 2 QB 232 at 241:
“The court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children and must exercise that jurisdiction in a manner in which a wise, affectionate and careful parent would act for the welfare of children. The power is to be exercised for the protection of those whose plight enlivens it…”
Before turning to the facts of this case, can I just make some further observations.
I have gratefully received the benefit of submissions from the Attorney-General in this case in relation to the potential intersection between the parens patriae jurisdiction and the relevant Queensland Humans Right Act. I have taken into consideration the careful submissions of counsel for the Attorney-General as to how that Act, in a practical sense, intersects between the decision made by a Judge in this Court, and that jurisdiction. Counsel identified that it is not clearly established in what circumstances that the Act will affect certain judicial decision-making processes but accepted that there was authority in this Court which might suggest that the parens patriae jurisdiction would be amenable to the Humans Right Act potentially applying.
I ultimately do not have to decide that question for the purposes of deciding this particular proceeding. That is because the considerations which have been carefully set out at paragraphs [21] and [22] of the submissions for the Attorney-General of how the Humans Right Act would interact with the parens patriae jurisdiction are, in my view, already encompassed within the notion that the focus of this Court must be to act in the best interests of the child.
A consideration of the various judgments in Marion’s case, in my view, inevitably leads to that conclusion. This includes, for example, that where the person the subject matter of the exercise of the jurisdiction is disabled that the Court should take into account that the decision should be made through the prism of the disabled person. As McHugh J in Marion’s case identified, there is a natural tendency for the Court to look through the eyes of an able-bodied person and make value judgments through their eyes. Whereas, through the eyes of the disabled person, the facts or circumstances may be significantly different. I bear in mind, therefore, the matters identified by the Attorney-General, and I also bear in mind the fact that it is clear that D in this case suffers from a cognitive disability.
Having made those initial observations, I have reached the conclusion that it is in the best interests of D to make an order which will facilitate the termination of her pregnancy. This takes into account a number of factors. The obstetrician has provided an opinion that there is an increased physical risk to D by continuing with the pregnancy. Those increased physical risks exist, and they are higher than in somebody who would have been an adult having a pregnancy. The increased risks are not said to be substantial, but they exist.
The obstetrician has also provided an opinion that termination by surgical procedure is preferable over a medical termination. There was oral evidence in this case, particularly via cross-examination, which explored these issues. In my view, I would accept the opinion of the obstetrician that a surgical approach is the one which is the least likely to result in complications. I will, ultimately, make an alternative order that if the surgical approach were not able to be undertaken then the medical procedure could be undertaken, but I will identify that the surgical procedure is to be preferred.
The child psychiatrist provided an opinion that continuing with the pregnancy would pose risks to D in terms of her ability to cope mentally. In doing so, he did acknowledge that there will, obviously, be a risk to D in suffering grief and possibly entering a depressive state following the termination. He indicates that that scenario could best be treated with psychological and possible pharmacological support.
However, in relation to the alternative, the mental risks could manifest in a number of ways. First, there would be the mental risks associated with the actual birth process itself, where the medical evidence is that D really does not have an appreciation of the process which she would have to engage in. Secondly, there is then the risk of mental damage, which she would be exposed to in two circumstances. The first of those circumstances would be if she were to give the child up for adoption, which she has positively indicated she would not want to happen, and the second circumstance, which is a realistic circumstance in my opinion, on the evidence, is the child could be taken by the State through the Family Services Department.
I say that is a realistic position for a number of reasons. First, the evidence supports that, currently, D herself has little capacity to care for this child as an individual. Secondly, the ability for the child to be cared within a family unit needs to look at the context of the family unit. D’s parents have separated, and both have re-partnered. She is, at the moment, predominantly cared for by her mother. Within that particular family grouping, there is a new partner, but there are also several other children, some of which are relatively young. D’s mother works full-time.
For reasons which are legislative, the cognitive disability which D clearly has does not entitle her to the aid of the NDIS. That is through no fault of her parents. It is simply the operation of the Act as it currently exists. What that means is, that in caring for D with her significant cognitive disability, both time and the limited money that her family has has to be expended.
It is into this family grouping, then, that if she had the child, that child would have to 45 be cared for, and there is a real risk in that scenario the child would not be able to be appropriately cared for by D. That is not to say that D’s mother is anything but a loving mother and that she has a loving family environment, but is to recognise the reality of the circumstances of that family grouping and the significant fact that D’s disabilities are not being cared for through an NDIS entitlement.
I add to this the age of D. As I have said, she was 14 when she fell pregnant. She has just turned 15. She has limited ability to care for herself, let alone a child, and a limited understanding of what caring for a child would entail. The social worker has proffered an opinion, from her experience as a social worker, of the difficulties that can arise in circumstances where somebody suffers the cognitive disabilities of D at a young age if they are asked to care for a young child. Those risks created from that environment create risks not just for D in terms of her mental wellbeing, but risks for the child itself.
In making these observations, I do take into account, as authority dictates, that I should look at this through the prism of a disabled person. However, this is not simply a case of a disabled adult who has fallen pregnant. This is a minor who fell pregnant at 14 years of age with little understanding of what she was doing in terms of the processes of giving birth and also the needs of caring for a child.
In those circumstances, exercising the jurisdiction of this Court and the parens patriae jurisdiction, I would make an order to the effect that D be permitted to undergo, and the applicant’s servants and agents be permitted to perform, the termination of D’s pregnancy by surgical operation. The surgical operation provided by that order will be performed on or before 2 August 2024 and, alternatively, if the surgical operations cannot be performed by 2 August 2024, D be permitted to undergo, and the applicant’s servant or agents be permitted to assist with, a medical termination of D’s pregnancy.
I ought to have indicated before making that order and do so now, that both D’s mother and father had indicated, in sworn testimony, that they believed it was in the best interest of D to have the termination. That was not a decision which they could make on behalf of D, and their views are not determinative, but their views are relevant to the best interests of their daughter, and it is relevant for me to have taken into account the view that they have formed. Indeed, both of those persons are perhaps best placed in understanding what the best interests of their child are. In any respect, their views accord with the views formed by the various medical professionals in this case and also the midwife and the social worker. It also accords with the view that I have formed.
I turn then to the issue of the intrauterine device.
For the reasons that I have expressed earlier in relation to the lack of Gillick competency in respect of the termination, I hold the same view that there will be a lack of Gillick competency in relation to whether or not this device should be inserted surgically during the termination process.
It may be that this is a decision that the mother and father of D can consent to. However, for the purposes of giving confidence to the medical practitioners who work under the applicant or for the applicant, I will exercise my parens patriae jurisdiction to make an order authorising the IUD to be inserted. That order will be that it is authorised that, at the same time D undergoes the procedure in the previous order, an intrauterine device be inserted by the applicant’s servants or agents.
I had raised with all of the parties my concern that this should not be, in effect, construed as a de facto form of sterilisation for D. She is currently just 15 years of age. She will become an adult, and at that stage may well have the capacity to make a decision in her own interests to have children. Accordingly, I asked an order to be drafted to accommodate and make clear that the insertion of the intrauterine device was not some form of de facto sterilisation. I have had the benefit of reviewing the order that is being given to me, and in all the circumstances it seems appropriate.
Accordingly, I will make a further order that the authorisation in the prior order, first, does not authorise any ongoing contraception of D beyond the insertion of the single IUD provided for by that authorisation, and secondly, does not prevent the IUD from being removed at any time in the future in the event that D is competent to consent to its removal at that time and thirdly, does not prevent the IUD from being removed at any time in the future should it be necessary to do so to protect D’s mental and/or physical health.
In making that last order for the insertion of the IUD under the parens patriae jurisdiction, I again have taken into account the best interests of the child. For similar reasons expressed in relation to the termination, in my view, it is appropriate to allow the IUD to be inserted to avoid D from becoming pregnant again and the same issues being raised.
As I said, D will eventually become an adult, and she very well may have the capacity to wish to have children, and in those circumstances, the parens patriae jurisdiction will have no force or operation, but until then, and given that she is still a minor, and at 14 she was sexually active and actively seeking to become pregnant, it is entirely appropriate, in my view, to exercise the jurisdiction facilitating the insertion of the IUD.
The final issue is that various orders are sought to be made for the protection of the identity of D. They are set out in a draft order that has been sent to me under a heading Suppression. I have reviewed each of those orders, and they are each appropriate, in my opinion, to be made.
I will also abridge the time for service of an amending application which had been filed in this proceeding to allow the IUD additional orders to be made. Each of those orders has been incorporated into a draft order that I have. The formal order of the Court will be in accordance with that draft order which is signed by me and placed with the file.