Gillick competent child and Transplantation and Anatomy Act 1979 (QLD)

Barry.Nilsson.’s Special Counsel Samantha Pillay and Senior Associate Emma Harman discuss a recent case where the Queensland Supreme Court authorised a hospital to administer a blood transfusion to a Gillick competent 15-year-old patient pregnant with twins. Barry.Nilsson. lawyers acted for the hospital. The Court, however, did not resolve the question of whether s20 of the Transplantation and Anatomy Act 1979(Qld) can override a mature minor’s refusal of a blood transfusion, they write. 

The Queensland Supreme Court recently authorised a hospital to administer a blood transfusion to a Gillick competent 15 year old patient who is pregnant with twins.

The Court did not resolve the question of whether s20 of the Transplantation and Anatomy Act 1979 (Qld) (the Act) can override a mature minor’s refusal of a blood transfusion.

The issue of consent

Each of the patient’s treating practitioners considered her to be mature for her age, and assessed her as Gillick competent in relation to the decision to consent to or refuse a blood transfusion.

Initially, the patient refused to consent to the administration of blood products, even if necessary to save her life, due to her Jehovah’s Witness upbringing. She later, in the absence of her parents, gave consent to receiving a blood transfusion in an emergency situation.

The patient’s father advised the treating team that he did not consent to the administration of blood products to the patient for religious reasons. Later, when served with the application, he stated that that he neither consented to nor opposed the orders sought for the purposes of the application. The patient’s mother did not state her position.

The legal context

Section 20 of the Act protects medical practitioners from criminal liability for administering a blood transfusion to children in emergency situations against the wishes of the child’s parents or of a “person having authority to consent”. It also deems the transfusion to have been given with consent for all purposes in circumstances where the criteria of the section are met.

It is not clear from the Act whether the category of persons “having authority to consent” includes a patient who is a Gillick competent minor, or is limited to third parties such as non-parent guardians.

To date, this has not been addressed by a Queensland court.

In the Mercy Hospitals case[1] last year, the Victorian Supreme Court considered a similarly worded Victorian provision which also contained the phrase some “other person having authority to consent”.[2] That case concerned the administration of blood to a 17 year old Jehovah’s Witness patient in the event of a postpartum haemorrhage.

The Victorian Supreme Court drew a distinction between the scope of its parens patriae jurisdiction (which is broad and takes into account all the welfare interests of the minor) and the scope of the Victorian provision (which is only engaged if the minor is likely to die). The Court made the declaration that was sought. It was not necessary in that case for the Court to decide whether the hospital could rely on the Victorian provision to override the minor’s refusal of treatment.

The application

In this case, despite the minor patient’s eventual consent, the treating team considered it prudent to seek court orders because:

• • The patient’s consent could be withdrawn due to influence by her parents or the Jehovah’s Witness community, or of her own accord at any time before the caesarean procedure.
  • It is not clear whether the protections afforded to medical practitioners under the Act extend to overriding the refusal of treatment by a Gillick competent minor. The treating team therefore could not confidently rely upon the legislation.
  • In the event that the patient became unconscious during or after delivery, the decision around consent would be made by the patient’s parents. The treating team were not concerned that the decision may be in the patient’s best interests.
  • Any delay in administering a blood transfusion to the patient, for instance if the question of consent became unclear during the procedure, could increase the risk of an adverse health outcome.

We acted for the Hospital and sought orders including a declaration authorising the treating team to administer such blood products to the patient during labour, delivery and the post partum period as may be desirable or necessary according to good medical practice.

The decision

The Court granted the orders sought, and commended the Hospital for seeking orders pre-emptively and in a timely manner.

Unfortunately, the Court did not shed further light on section 20 of the Act and whether its protection extends to override the refusal of a Gillick competent child. It was not necessary for the Court to decide this issue, as it was able to make the orders under its inherent parens patriae jurisdiction.

Things to consider

Clinicians in the future may similarly want certainty in the event that a blood transfusion is refused by a Gillick competent minor. It remains unclear whether they would be protected by section 20 of the Act in this situation.

What is clear from recent cases is that the parens patriae jurisdiction of the Court is broad and is able to be engaged earlier in anticipation of medical treatment. It extends to the overall wellbeing of a minor and is not limited to transfusions that are necessary to preserve the minor’s life, as is the case under the statutory provisions in some states.

The problem for hospitals is that obtaining court orders can be a time consuming and costly process. Arguably the misdirection of hospital resources to court applications is the very situation that the legislation was designed to avoid, and a case can be made for legislative amendment to clarify the position in Queensland.

Please contact the authors if you have any queries about this article.

Samantha Pillay is a special counsel in the Insurance & Health team. She joined Barry.Nilsson.’s Brisbane office in 2005, having already established a practice in personal injury litigation. Samantha has qualified to practice in both Australia and the United Kingdom. Having begun her career handling CTP and public liability matters, Samantha’s practice has evolved to now focus on health law, including: Litigation, specialising in medical malpractice and professional indemnity Coronial inquests, Office of Health Ombudsman and AHPRA matters. Assisting with internal investigations and clinical reviews of particular interest to Samantha are: complex policy coverage issues; claims involving financial and medical professionals, with specific interest in emergency medicine and children’s health. Samantha’s clients include: public and private hospitals, medical, radiology and pathology practices and day hospitals and their insurers, medical and health professionals and their insurers, financial service professionals and their insurers, and other insureds. Samantha has a Bachelor of Laws (Hons) and a Bachelor of Arts (Psychology). She is a member of the Medicolegal Society of Queensland and the Australian Professional Indemnity Group (APIG) and a previous committee member of the Queensland chapters for Women in Insurance and APIG. Contact Samantha at samantha.pillay@bnlaw.com.au or connect via LinkedIn.

Barry.Nilsson. Senior Associate Emma Harman is part of the Insurance & Health team. Having previously practised in Adelaide, Emma joined Barry.Nilsson.’s Brisbane office in July 2017. Emma specialises in: Medical malpractice, defence and disciplinary proceedings; Public liability, including property damage and personal injury claims; She has a particular focus on health law and has experience acting for medical professionals and their insurers, local government insurers and commercial clients. Emma has a Bachelor of Law (Hons) and Bachelor of Economics, as well as a Diploma of Languages (Spanish). She is a member of the Queensland Law Society and the Australian Insurance Law Association. Contact Emma at emma.harman@bnlaw.com.au or connect via LinkedIn.