X v The Sydney Children’s Hospitals Network [2013] NSWCA 320 saw the Court of Appeal (New South Wales) revisit a parens patriae order permitting medical practitioners to provide blood products to a boy aged 17 years. The boy had refused the transfusion and in so doing was supported by his parents.

The matter was unusual as the boy was approaching legal majority. Justice Beazley noted at [7]:

The fact that X, at the time that the appeal was heard, was only some four months away from his eighteenth birthday, may lessen the Court’s imperative in protecting his welfare by giving precedence to potentially saving his life over his personal wishes and those of his parents. However, a decision was made, undoubtedly for appropriate reasons, not to provide any up to date information to the Court as to X’s present medical status or any treatment given in the meantime.

 

Dealing with the interplay between Gillick competence and the parens patriae jurisdiction, Justice Basten at [45] – [47] held that Gillick competence does not diminish the scope of the Court’s parens patriae powers.

Justice Basten held (with the other members of the Court agreeing) that the trial judge properly took into account a number of relevant considerations, including the religious belief of X and his best interests. Accordingly the appeal was dismissed.

An interesting issue was ventilated at [73]:

…the applicant contended that the evidence did not suggest an imminent likelihood of death. It followed, the submission continued, that the interest of the state in keeping him alive until he turned 18 was not jeopardised. Assuming the correctness of the factual premise, the state interest is not limited to saving life. However, the medical evidence, as at March 2013, was that the tumours had returned and required treatment by chemotherapy at a level which would lead to anaemia and hence an 80% chance of death unless blood products were given. The state interest is not satisfied merely by keeping the applicant alive until his 18th birthday if the appropriate treatment to allow the continuation of his life thereafter should be given now.

At [71], an amendment to the orders previously made was permitted, such that the orders made shall only continue until the 18th birthday of X. As said at [72]:

The interest of the state is in keeping him alive until that time, after which he will be free to make his own decisions as to medical treatment….