Supreme Court Overrules Parents’ Decision to Refuse Toddler Blood Transfusion

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Sick child

The Supreme Court of New South Wales has overruled the wishes of parents not to allow their daughter to be given a blood transfusion, reinforcing the longstanding family law rule that the interests of the child are paramount when making decision about them.

The story so far

Regional New South Wales health officials had made an application to the court requesting an order which authorises them to give the toddler a blood transfusion, after her parents refused to provide consented. 

The toddler is the daughter of parents who are strict Jehohovah’s Witnesses. She was born with a range of serious medical conditions and she is also dependent on tube feeding which requires regular replacement.

The toddler underwent two surgeries, to which the parents consented. But the 3-year old is expected to need blood transfusions as a result of the procedures.

Jehovah’s Witnesses believe that a human must not sustain his life with blood other than their own. They therefore they do not want their daughter to have the transfusions. 

The court was told that the medical team was “sensitive” to the parents’ wishes, despite seeking to have them legally challenged.

The court also heard that the medical team had been seeking alternatives, and intended to use a ‘blood conservation’ strategy – which is where as much of the patient’s own blood is collected as possible then used for the transfusion.

It was, however, acknowledged noted that other blood and/or blood products might be needed to manage the risk of further damage to her health, including the risk of death. 

Under the Family Law Act 1975, parents of children under the age of 18 have a number of powers, duties and responsibilities in relation to their children (unless a court determines otherwise). 

Informed medical consent 

Typically, when it comes to medical treatment of a child, consent must be provided by someone with parental responsibility, (a parent or guardian, or close family relative) unless emergency treatment is required, and it is not possible to obtain consent beforehand. 

Medical consent is not enshrined into law specifically, but it is considered under common law that people have a right to refuse treatment, and they have a right to make informed decisions – decisions based on information and knowledge. Patients have a right to ask questions and medical professionals have a responsibility to educate patients.

If parents and medical professionals cannot agree on the treatment for a child, the medical team can seek a court order. Under the law, a ‘mature child’ can seek their own court order where they are in disagreement with their parent/s about a treatment or medical procedure. The court will determine whether they are capable of making an informed decision without needing the consent of a parent or guardian. 

Circumstances where consent is not required 

Further, in all Australian jurisdictions, there is legislation which permits particular forms of treatment for minors (youths under the age of 18 years) without parental consent.

In New South Wales, Section 174 of the Children and Young Persons (Care and Protection) Act 1987 (NSW) provides that the requirement for informed consent for treatment can be dispensed with if an appropriate medical professional determines that the treatment is necessary to save the life of the child or prevent serious damage to his/her health.

The role of the court 

There are a number of established precedents around Australia in cases where parents have refused treatment on religious grounds. 

Justice James Henry explained the role of the court in applications such as this, is “to exercise an independent and objective judgment so as to balance the advantages or disadvantages of the medical procedure under consideration.”

Justice Henry concluded that authorising the use of blood, if needed, was in the best interests of the child.

Cases such as this tend to be highly emotive because they raise a myriad of issues around the intervention of the courts – legal, ethical and moral obligations, religious freedoms, as well as the right to personal choice and self-determination. 

Courts must balance all of these considerations with sensitivity and objectivity. 

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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