In Australia, the Supreme Court has the power to make orders for medical treatment in relation to children, mentally ill and people without capacity.
In the recent case of Hospital v Baby M [2020] NSWSC 1481, a hospital sought orders to perform cardiac and ear nose and throat surgery on a three month old child, in circumstances where the child’s parents had not provided their consent. In this particular case, the parents of the child did end up providing their consent and therefore it was not necessary for the Court to make those orders.
However, there are examples of cases where the Court has exercised it’s parens patriae jurisdiction to authorise treatment of a child in circumstances where the child or the parents have not provided their consent.
For example, in the case of X v The Sydney Children’s Hospitals Network [2013] NSWCA 320, the Court upheld a decision to authorise a blood transfusion in relation to a 17 year-old minor who refused the transfusion on the basis of religious beliefs. The minor’s parents were supportive of his refusal as they shared the same views. However, the treatment was authorised with the Court noting that the parens patriae jurisdiction is not limited, even in circumstances where a minor has capacity to make decisions about their health.
In making such decisions the Court must consider the “best interests” of the individual or child who is the subject of the case.
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