Darling Downs Hospital & Health Service v J
[2024] QSC 330
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- Notable Unreported Decision
- Darling Downs Hospital & Health Service v J[2024] QSC 330
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Darling Downs Hospital & Health Service v J[2024] QSC 330
Darling Downs Hospital & Health Service v J[2024] QSC 330
SUPREME COURT OF QUEENSLAND
CITATION: | Darling Downs Hospital & Health Service v J [2024] QSC 330 |
PARTIES: | DARLING DOWNS HOSPITAL & HEALTH SERVICE (applicant) v “J” (BY HER GUARDIAN, THE CHIEF EXECUTIVE, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES) (respondent) |
FILE NO/S: | BS 10841 of 2024 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane |
DELIVERED ON: | 26 August 2024 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 August 2024 |
JUDGE: | Treston J |
ORDER: | In addition to orders pertaining to anonymisation, the court ordered that:
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATING TO CARE AND PROTECTION – POWERS RELATING TO MEDICAL TREATMENT – where the respondent is a 13 year old child who is not more than 22 weeks pregnant – where the applicant is the treating health service – where the respondent is the subject of a long-term guardianship order – 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 HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the court must have regard to provisions of the Human Rights Act 2019 (Qld) in exercising its parens patriae jurisdiction – where having concluded that the respondent is not Gillick competent, the court must decide whether the authorisation for a termination of pregnancy is in the respondent’s best interests – whether authorisation for a termination of pregnancy is in the respondent’s best interests and will promote her protection as a child under s 26(2) of the Human Rights Act (Qld) Human Rights Act 2019 (Qld), ss 11, 13, 15, 16, 17, 25, 26, 29, 37, 106 Supreme Court of Queensland Act (Qld), s 128 Termination of Pregnancy Act 2018 (Qld), ss 5, 6 Uniform Civil Procedure Rules 1999 (Qld), r 108 Central Queensland Hospital and Health Services v Q [2017] 1 Qd R 87 Gillick v West Norfolk Area Health Authority [1986] AC 112 Gold Coast Hospital and Health Service v D [2024] QSC 300 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 State of Queensland v B [2008] 2 Qd R 562 Townsville Hospital and Health Service v R [2022] QSC 251 |
COUNSEL: | KA McMillan KC for the applicant R Berry for the Attorney General as amicus curiae |
SOLICITORS: | MinterEllison for the applicant Crown Solicitor for the Attorney General as amicus curiae |
- [1]This is an originating application brought by the Darling Downs Hospital and Health Service. It is being heard on an urgent basis, and I am delivering these reasons on a similar basis, ex tempore. That is because the relief that is being sought is time sensitive in relation to the medical procedure which is being sought to be undertaken. The originating application seeks, inter alia, a declaration as to whether the respondent, who I will refer to throughout as “J”, is or is not Gillick competent for the purposes of providing consent to undergo a surgical termination of a pregnancy. I will refer to the respondent as J for reasons of anonymity because J is a teenager aged 13 years and 11 months who is at 12 weeks gestation in her pregnancy. She is a patient of a public hospital conducted by the applicant.
- [2]The issue before me today is whether the court should determine that J is Gillick competent to consent to have the procedures which are identified in the draft order which has been provided, and if she is not, to consider whether an order ought to be made to undergo a surgical termination of the pregnancy.
- [3]A minor such as J is capable of giving informed consent when she achieves a sufficient understanding and intelligence to enable her to understand fully what is proposed. That arises out of the case of Gillick v West Norfolk Area Health Authority,[1] approved by the High Court in Secretary, Department of Health and Community Services v JWB and SMB,[2] particularly at 237.
- [4]This court hears a number of these matters from time to time. Recently, Justice Sullivan, in an unreported judgment, described the issues and the legal framework for consideration in an application such as this, and I gratefully adopt his Honour’s summary as follows:
“A medical procedure, including a proposed termination, may be an assault or a 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 [a] child is insufficient. This category includes a termination of a pregnancy.”[3]
- [5]This category is sometimes referred to as a special medical procedure. For such a procedure, unless the child is able to provide a valid consent, court authorisation of the procedure is necessary as a procedural safeguard.
- [6]Sections 5 and 6 of the Termination of Pregnancy Act 2018 (Qld) (the Act) set out the circumstances in which a medical practitioner may terminate a pregnancy. Compliance with those provisions is a matter that is relevant to a registered health practitioner’s professional conduct or performance, but a failure to comply is not a criminal offence. In this case, I am satisfied that s 5 of the Act applies because the termination is in respect of a young woman not more than 22 weeks pregnant.
- [7]Separately, this court has inherent parens patriae jurisdiction. Here, the court has a wide power in relation to the welfare of infants and the dominant factor in the exercise of jurisdiction is what is in the best interests of the child. The age of majority in Queensland is 18 years. The court’s parens patriae jurisdiction therefore extends to the respondent, J, but it does not extend to the unborn foetus, a fact to which I will return below.
- [8]On past occasions, this court has dealt with the question of Gillick competency in relation to the termination of pregnancy of minors. I refer to two such examples. The first was in the State of Queensland v B,[4] where Justice Wilson was satisfied that a 12 year old of less-than-average intelligence and maturity could not fully understand the significance of a termination of pregnancy. In Central Queensland Hospital and Health Services v Q,[5] Justice McMeekin was satisfied that a 12 year old of typical maturity who was not intellectually impaired could not fully understand the significance of a termination of pregnancy. That was despite his Honour finding that the child in that case, in fact, had a very good understanding of the risks attendant on the procedure. His Honour considered that the principal limitation was that the child could not have the ability to comprehend the long-term consequences of a decision not to terminate.
- [9]There is a third case to which I refer and that is Townsville Hospital and Health Service v R.[6] In that case, Justice Hindman considered the circumstances of a 16 year old young woman seeking a late termination of pregnancy who presented as immature for her age in her manner and her speech, where there was a suggestion that she had ADHD, where she had learning difficulties associated with a mild language disorder, and was unable to identify how she came to be pregnant. She had required multiple explanations as to what a termination of pregnancy would involve. Her Honour found that young woman to be Gillick competent. Her Honour found that what was more important than the child’s immature presentation was whether, at the time of the application, she properly understood the options available to her and the risks associated with each of those options.[7] The case is of some importance because it post-dates the relevant legislation under consideration.
- [10]In this circumstance, the child in question is, as I have said, 13 years and 11 months of age. Whilst age is a consideration, it is not determinative, and what the authorities show is that each case has to be considered on its own facts. Before turning to the evidence, I will mention briefly the question of service.
- [11]Ordinarily, with a minor, service of an application should be made in accordance with r 108 of the Uniform Civil Procedure Rules 1999 (Qld). An application of that rule in these circumstances would have defaulted to a requirement to serve the originating application and supporting material on J’s present guardian. That is because J was taken from her mother in 2018 when she was about eight years of age. Originally, the identity of her father was thought to be unknown, but the better view with the evidence now seems to be simply that there is little or no contact with him. Either way, J is currently in the custody of the State authorities and is the subject of a long-term guardianship order. The State has been served but does not appear before me today. J’s parents have not been served but as I say, for the reasons I have articulated, I am satisfied that proper service has been affected on the State.
- [12]I turn to deal with the evidence in this case regarding J’s competence. The first is an affidavit of Dr Bierman, Psychiatrist, who has provided a report annexed to his affidavit. The doctor is a specialist psychiatrist. He deposes to the fact that whilst he has significant experience working in child mental health, particularly with children with complex history of trauma, substance abuse and medical comorbidities, he has not had any prior experience in relation to caring for the mental health of a young, pregnant patient like J.
- [13]Dr Bierman interviewed J in the presence of her sister; herself, an 18 year old young woman. Dr Bierman found J difficult to assess because of her very limited engagement with the interview. Whilst she was a patient at the Roma Child Youth Mental Health Service, she presented as anxious, withdrawn, reluctant to engage with clinicians, and often displaying a delayed response to questions she was asked. Certain words were noted to trigger a withdrawal from responses including the word “pregnancy”. Dr Bierman observed that during his contact with her, J was avoidant of contact via webcam and looked to her sister in response to the majority of the doctor’s questions. When she did answer, her answers were limited and often unintelligible, as she spoke in hushed tones and was reluctant to repeat her answers. She reported not knowing why the interview was being organised despite it having been explained to her the day before. She could not explain meaningfully how she spent her days. After 10 minutes, she stated that she did not want to answer any more questions because they were causing her to feel confused. She was not able to be persuaded to continue with the interview but was agreeable to the doctor speaking to her sister while she sat outside the room.
- [14]J’s sister described to the doctor that J was normally more relaxed and talkative at home and spoke quite a lot about her pregnancy. The sister described that J hated the pregnancy and wanted it gone. It made her feel empty and drained, and she hated being sick and nauseous as a consequence of it. J’s sister reported that J just wished to be a normal kid again, to return to school and make something of herself. J’s sister advised Dr Bierman that J had never said she wished to keep the pregnancy.
- [15]Dr Bierman thought it was difficult to adequately assess J’s insight because of her limited engagement in the interview, although he observed that the collateral information suggested that she was aware of the nature of the events that led to her original admission to hospital and that staying away from Toowoomba was actually enabling her to heal from the trauma that she had experienced there. Importantly, Dr Bierman observed that there was no evidence of cognitive disability.
- [16]In relation to that last issue, I pause to observe that although there is no such evidence, J does have a very limited education. She has been at school only for about one week of year 8 and has had a very poor attendance in year 7, matters which Dr Bierman seemed to understand. Dr Bierman’s impressions were, as I say, largely limited because of J’s very limited engagement in the interview and most of his impressions were formed through collateral information obtained from other staff members at the hospital. Dr Bierman referred to the fact that J demonstrated intense avoidance features which made it difficult to properly assess her.
- [17]Additionally, Dr Bierman considered that there was a secondary diagnosis from her chart, in that she had engaged in harmful cannabis use which was now in remission.
- [18]Dr Bierman noted that J presented with an anxious disposition but did not think she reached the threshold for a formal anxiety disorder. His impression of her cognitive ability was limited due to her limited engagement. Dr Bierman concluded, “no further conclusions regarding J’s cognitive functioning, capacity to make a decision regarding the pregnancy, and the likely outcome of continuing with or terminating the pregnancy, are able to be drawn from this review”.
- [19]Ultimately, Dr Bierman expressed the view that whilst J was not Gillick competent for the purpose of making decisions around the termination of pregnancy, that did not stem from any mental illness but stemmed from developmental immaturity.
- [20]Next, the court received evidence from Dr Richardson of the Roma Hospital, a Specialist General Practitioner, who expressed some significant experience with teenage pregnancy in older teens, that is, those between ages 15 and 18 years, but very limited experience in respect of patients as young as J. Dr Richardson also saw J in the presence of her sister. He too made an assessment that J was reluctant to engage with him and that she had made little or no eye contact and barely spoke a word. He noted that most of the speaking was done by her sister.
- [21]Whilst conferring with J and her sister, Dr Richardson discussed the options, the disadvantages, and the risks of termination of pregnancy with J, including that medical termination would involve taking medication to cause a miscarriage. He described that risks included the risk of heavy bleeding which may require urgent surgery to manage the bleeding, and a risk of failure to cause a full termination which might require, then, further surgical management. Alternatively, he described the surgical termination which would involve surgery to remove the pregnancy from the uterus. And whilst there was a lesser risk of heavy bleeding in comparison to a medical termination, there was an increased risk of infection. There was also a risk of failure of the procedure requiring a return to theatre for a repeat procedure. He recorded that J did not ask any questions about the pregnancy or ask for any information regarding the termination. It was only J’s sister who expressed the preference that J intended to undergo a termination.
- [22]Dr Richardson then saw J for a second time at the Roma Hospital on the weekend of the 10th and the 11th of August, again, in the company of her sister. J had been reviewed by another doctor in the context of vaginal bleeding and there was some concern about a miscarriage. A further scan was carried out, which demonstrated a reassuring foetal heart rate. Dr Richardson considered that he received mixed signals from J, who seemed happy to watch the baby’s movement on the ultrasound, and when he inquired whether she still wished to have a termination, she advised that she did not. His attendance upon her on that occasion lasted only five or 10 minutes.
- [23]Dr Richardson concluded that, having reviewed the notes and consulted with J, he could not be certain whether she had a sufficient understanding of the information, which was provided, nor could he be sure that she had the cognitive capacity to fully understand the nature and the risks of the proposed treatment. Her lack of engagement with the conversation and her lack of eye contact meant that he remained uncertain how much information was being heard and understood. She did not question any of the information, nor did she seem to incorporate it into her decision-making, other than to nod occasionally or give one-word answers. Dr Richardson concluded that in the course of his practice, he had dealt with minors on multiple occasions and considered that he was practised in having conversations with them to form an opinion regarding their maturity. At the time of his consultations with J, however, he was unable to form any such opinion about her. He concluded she was not Gillick competent.
- [24]The third affidavit came from Dr Tucker of the Obstetrics and Gynaecology Department at the Toowoomba Hospital. Dr Tucker had consulted with both J and her sister in relation to a possible termination of the unplanned pregnancy, which he reported as arising out of a sexual assault. When Dr Tucker saw her initially, J did not express a desire to have a termination, however, her sister told Dr Tucker that she did request a termination. Dr Tucker did not discuss the options with J because he was not able to assess her ability to understand the consequences of her decisions. He arranged for a social worker to discuss the choices with her. Nevertheless, he formed the view that J was not Gillick competent, meaning she did not have sufficient cognitive ability or intelligence to enable her to have a full understanding of the nature of the proposed treatment. He also expressed the view that the pregnancy posed a significant risk to J’s mental health given her young age, the risk of complications of a pregnancy including eclampsia and preeclampsia. When considering the risks that surgery would pose to her mental health, he formed the opinion that the risk to her psychological well-being substantially exceeded the typical risks associated with pregnancy and childbirth. He was of the firm opinion that a termination of pregnancy was in her best interests in order to avoid severe mental health complications.
- [25]The social worker to whom Dr Tucker had referred J, Ms Olivia Courtney, also provided an affidavit in these proceedings. Ms Courtney engaged with J and her sister on 31 July 2024 and then reviewed J separately on that same day. After that, she maintained ongoing telephone contact with J’s sister on a number of occasions. According to Ms Courtney, J was admitted to the Adolescent Mental Health Unit on 2 July 2024 due to concerns regarding a possible diagnosis of a psychosis. Ms Courtney observed J was withdrawn, displaying behaviours and feelings of uncertainty. For example, J hesitated to enter a clinic room with Ms Courtney even though she was in the presence of her sister. J refused to sit down during the meeting; instead, standing by the exit to the door. J did not engage in conversations when Ms Courtney asked her about her wish to terminate the pregnancy or otherwise. Ms Courtney discussed other options with J including adoption, kinship care of the unborn, and services that could be offered to J and the child. On other occasions, Ms Courtney tried to telephone and speak to J, but her sister told Ms Courtney that J had left home days earlier and had not been seen or heard from since.
- [26]Ms Courtney concluded that although J had originally informed her that she wished to undergo a termination, she was not able to repeat back any of the information regarding the specifics of a termination procedure or any of the risks that were involved with it. She recorded that J consistently was unengaged, with minimal eye contact and minimal verbal responses. She noted J could not respond to any questioning which would demonstrate her understanding of the procedures. Despite the considerable support of her sister, Ms Courtney could not conclude that J understood what was involved in a termination. She ultimately concluded that J did not understand the termination because of her demonstrated lack of engagement in the discussion and her lack of verbal confirmation to enable her to consent to the procedure. She expressed the view that J did not have sufficient understanding and intelligence to enable her to understand the termination.
- [27]J gave evidence in the proceedings before me today. I should record that she was not formally sworn or affirmed to give her evidence, so as to make the proceedings less confrontational to her. Nevertheless, all of the parties proceeded on the basis that her oral evidence ought to be considered.
- [28]Unlike her presentation to the doctors, today she made reasonable eye contact via the webcam facility she appeared over, and her answers were not confined to the one word answers which the doctors seemed to draw out of her. She was asked some questions about whether she had thought about termination and what her views were in relation to it. She expressed that she would like to have a termination because she thought she was too young to have a child, and she would not be able to handle it. She indicated she still wished to return to school. She gave evidence that although she had originally wanted to keep the baby, she was worried because in the environments in which she was living, people were smoking, and she had formed the view that cigarettes were not good for her baby’s health. In that way, she seemed to understand something about the need to protect the baby whilst she was pregnant.
- [29]J could recall for the court that her sister did not think it was a good idea for her to have a baby. Indeed, she gave evidence that all of her family did not think it was a good idea because she just described the baby as a “rape baby”, seeming to be consistent with the view that the pregnancy arises out of a sexual assault. She also expressed the view that she thought that the baby could be her cousin and she did not want to be the mother of her cousin. In this way, she seemed to understand some of the issues that she ought to properly consider when sensibly approaching whether she ought to consider a termination or not. Against that, however, when asked about the risks of termination that she had discussed with doctors, she could only describe one risk and that is the risk that she would have to stay at home if she kept a child. She described that she had not really been told whether it was bad to have a termination or not. She could not repeat to the court any of the risks of the procedure which had, by this time, been explained to her at least by a number of doctors and the social worker.
- [30]I think it is a fair assessment of J’s evidence to say that she could not identify in any meaningful way what the risks to her physical or mental health might be, despite the number of doctors who had discussed it with her. While I accept that we must be cautious in approaching her evidence because she has been disengaged from the education system for a long time, she is not yet 14 years of age, and it was no doubt very difficult for her to communicate her views before the court. I have to make an assessment of whether I consider that she has a proper understanding or a sufficient understanding of the benefits and disadvantages of either termination or not. I accept that there is quite a bit of evidence before the court that J has had some fluctuating views as to whether she wished to have a termination or not, and the immaturity of her views, I think, is reflected in the evidence that she gave to the court today.
- [31]Although it was not able to be put to J because her sister was called after her, her sister did, for example, give another example of the occasions when J had thought that she wished to keep her child. It was because the sister described that J was looking for unconditional love from someone and when her sister offered to buy her a pet rather than have a baby, she agreed that a pet might be a good substitute.
- [32]Nevertheless, this is a very finely balanced case. J’s presentation before me was not so guarded and uncommunicative as it was before the three doctors and one social worker who have seen her in hospital. Were her evidence in court today the only evidence before me, I may well have found that she was Gillick competent.
- [33]But J does not need to have her procedure as she sits in a car and speaks over a mobile phone to persons in a room in another location. She needs to be able to attend hospital, receive information, process it, and communicate her responses in that environment. She needs to be able to participate in a meaningful way with medical practitioners for the purposes of making an informed decision and she has consistently not been able to do so. I accept Ms McMillan’s sensible submission that J presents as a very vulnerable teenager who has not been able to develop a mature or clear-minded approach to the decision that she needs to make. She has not been able to readily recall the risks of the procedures, notwithstanding that they had been discussed with her on a number of occasions.
- [34]On balance, I accept that the evidence of the treating professionals favours the conclusion that J is not Gillick competent, although, for the reasons that I have set out the details of above, I accept that not all of those opinions were expressed unequivocally and there is evidence that really goes both ways. I place some particular weight on the evidence of the social worker, Ms Courtney, who has seen her on more than one occasion and who seems, of all of the experts, to have some particularly relevant experience in this space.
- [35]Paying due regard and deference to that evidenceand taking into account the evidence that I have heard today, I am not satisfied that J has the competency to make the decision which is required of her. She does not have a realistic or full understanding of the options that are before her. She seems easily swayed by the views of those around her. I have no hesitation reaching the conclusion that she will not be able to reach a level of mature consideration required to demonstrate competency in the extremely short timeframe which is now required to make the decision. In the circumstances, I find that J is not Gillick competent.
- [36]Where a child does not satisfy the test of Gillick competence, then, the court’s parens patriae jurisdiction will be enlivened to make that decision on behalf of the child. The court would exercise that jurisdiction to protect a child who is otherwise unable to protect her own interests.
- [37]In exercising the court’s jurisdiction to protect the child’s interests, regard must be had to the provisions of the Human Rights Act 2019 (Qld), which provides an overlay of human rights in these proceedings. The court, when exercising its parens patriae jurisdiction, continues to have as the paramount consideration the bests interests of the child. In so considering the child’s best interests, the assessment must include respect for the child’s right to express her views freely and those views must be given due weight according to the child’s age and maturity.
- [38]On behalf of the Attorney-General, it was submitted that where factors relevant to the child’s best interests point in different directions, the various elements must be weighed against each other, and the proportionality test set out in s 13 of the Human Rights Act may be relevant to that task. In particular, invasive medical treatment should only be authorised if it is the least-restrictive option, and if it strikes a fair balance between the benefits and the harm to human rights.
- [39]The court having concluded that J is not Gillick competent, the court’s function is to decide whether the authorisation for a termination of pregnancy is in J’s best interests. In performing this function, therefore, the court needs to identify the human rights relevant to this function, and to weigh any competing considerations and their impacts on J’s human rights. In doing so, the court’s jurisdiction extends, as I said earlier, only to the child the subject of these proceedings and not to the unborn child.[8] Specifically, s 11(2) of the Human Rights Act provides that only individuals have human rights, and an unborn child is not yet an individual. Furthermore, the Human Rights Act at s 106 specifically provides that nothing in that Act affects laws relating to the termination of pregnancy.
- [40]Before weighing the rights, therefore, I identify them. The Attorney-General has helpfully set out what those rights are, and I think they are an accurate summary. One right which is clearly relevant, is that “[e]very child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child”: Human Rights Act at s 26(2). Other human rights that likely bear upon the question of J’s best interests include her right to recognition and equality before the law (s 15); her right to life (s 16); her right to be free from medical treatment without full, free and informed consent (s 17(c)); her right not to have her privacy interfered with unlawfully or arbitrarily (s 25(a)); her right to liberty and security (s 29(1)); and her right to access health services without discrimination, which includes the right to access sexual and reproductive health services (s 37).
- [41]While weighing those considerations, the court may take into account that in undergoing a termination procedure, it is likely that J may experience some level of pain or distress or may experience grief which would interfere with her mental and bodily integrity. However, the evidence of both Doctor’s Tucker and Bierman indicate the risks, particularly the risks to her mental health involved in the continuation of the pregnancy, are higher than those risks involved in the termination. I accept that those risks are greater to J than the risks associated with termination, particularly when her age, education and personal circumstances are considered. In the circumstances, I must make a decision which I conclude is in J’s best interests and will support and promote her protection as a child under s 26(2) of the Human Rights Act.
- [42]Whilst there has been some inconsistency in J’s presentation to doctors, her sister, and this court, regarding her desire to undergo a termination, the better view of the evidence is that J’s most frequently expressed view is that she prefers to undergo a termination. That is consistent with the evidence of the medical practitioners, and it is in her best interests that she does do so, and I propose to so order.
- [43]At the outset of the proceedings, I made an order pursuant to s 128 of the Supreme Court of Queensland Act (Qld) to close the court if the interests of justice require it. Having regard to J’s age and the privacy considerations, it was appropriate to make such an order. Whilst it is a fundamental principle of the system of justice that court proceedings are heard in public, a court can and should depart from this principle where it is necessary to do so in the proper administration of justice. I concluded that it was therefore necessary to close the court in J’s best interests.
- [44]For the same reasons, it is in J’s best interests that there be anonymisation of these proceedings. Whilst the reasons will be made publicly available, J’s rights will be protected by the anonymisation of her and her family members, and the anonymisation on the court file. That is appropriate and proportional pursuant to s 13 of the Human Rights Act. In the circumstances, I also propose to make an order for non-publication sought by the applicant, rather than a total suppression of the proceedings.