Hunter New England Local Health District v C [2024] NSWSC 929 

By Louise Cantrill, Partner and Matthew Skelly, Senior Associate

There have been ongoing issues with the consent required for the treatment of children and when parents’ decisions can be overruled.

Parker J has given some guidance on when medical practitioners can rely on section 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (CYPA) which may assist practitioners in NSW. It concludes that section 174 can be relied upon without the need to seek court approval in circumstances where the treatment is required “as a matter of urgency”, although the approach and legislative protections are not necessarily consistent across other jurisdictions.

Surgical treatment for a compound fracture of the lower left leg in a 12 year old boy was required to treat infection and save the boy’s leg. The parents consented to the surgery but not to any blood transfusion, should that become necessary during surgery. The surgeons confirmed they would take steps to minimise the likelihood of transfusion being required, but could not rule it out. Failure to provide the transfusion, should the need arise, carried with it a high chance of serious consequences including amputation or death.

Pursuant to an urgent application heard some months earlier in its parens patriae jurisdiction, the Court had already approved the use of transfusions during the surgery should they become necessary. However, his Honour had recognised the need for some judicial guidance on the effect of section 174 of the CPYA and had stood over argument on this issue to a later date.

Section 174 of the CYPA which provides:

174 Emergency medical treatment

(1) A medical practitioner may carry out medical treatment on a child or young person without the consent of–

(a) the child or young person, or

(b) a parent of the child or young person,

if the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life or to prevent serious damage to his or her health.

Argument focused on whether:

1. section 174 affected the Court’s ability to exercise its parens patriae jurisdiction;
2. the use of the word “emergency” in the heading limited the use of section 174;
3. the treatment to be provided must be “unforeseeable” to meet the requirement of urgency;
4. the treatment could still be given with the knowledge that consent had been withheld.

His Honour concluded that “the existence of s 174 does not limit the Court’s powers under the parens patriae jurisdiction”. [45] His Honour went on to conclude that “the section would have been adequate to protect [the boy’s] treating doctors should a transfusion have been required”. [46] In particular:

1. The reference to “emergency” in the heading did not make a difference to the interpretation of the section. His Honour noted that sections headings are only a “minor aid” that might provide some assistance if the provision itself is ambiguous. [39]
2. There was nothing in the wording of the provision to impose the requirement of the treatment must be unforeseeable.
3. The question to be answered is limited to whether, in the medical practitioner’s opinion, the treatment is necessary “as a matter of urgency”. Therefore, it is “immaterial whether the treatment was, or might have been, foreseen at an earlier point.” [36]
4. It follows from the above that the section 174 “is available even if consent to the treatment in question has been sought in advance and refused”. [37]

His Honour confirmed section 174 would have adequately protected the treating surgeons without the time and expense of a court application.  In his reasoning, his Honour took into account that the surgeons would take steps to minimise the need for a transfusion, the urgent nature of the requirement for a transfusion should it arise during surgery, and the dire consequences if the need for a transfusion arose and it was not given.

His Honour was also very aware of balancing act that may face practitioners in trying to decide whether a court application is required. He suggested that if the treatment is particularly contentious, or if the treatment is a “certainty” (rather than a contingency that may not arise, as was the case here), he acknowledged the medical practitioners may still feel it necessary to clarify the position by way of court application.