Protecting those who cannot look after themselves – the parens patriae jurisdiction
Medical professionals are, at times, faced with situations where urgent treatment in the best interests of a patient is required, but is not possible due to a patient being unable to consent, or a parent refusing consent for them. When doctors and families disagree, legal and ethical questions arise and the courts may be asked to intervene.
The parens patriae jurisdiction allows a Court to make orders for the protection of children and people who are otherwise not able to look after themselves. This process can be extremely stressful and difficult to navigate for medical professionals, who only want what is best for their patients.
This article provides an overview of the parens patriae jurisdiction and its practical implications when utilised.
The Court’s jurisdiction to act as parens patriae derives from the historical jurisdiction of the High Court of Chancery. Each Australian state has a version of this jurisdiction.
The modern jurisdiction is wide-ranging and can extend as far as necessary for the protection of a person. It is utilised in matters such as custody, protection of property, health problems, religious upbringing and protection against harmful associations. No limits have ever been set to the jurisdiction.
Most commonly, orders in this jurisdiction are sought to enable the performance of medical procedures where the consent on behalf of a child has not been given by the parents, which can include for vaccination, blood transfusions, abortion, and protective detention.
Although the jurisdiction is extremely broad, it has been noted in multiple cases that Orders should be exercised with restraint and only in exceptional cases and with caution. This is due to the Court seeking to uphold an individual’s personal liberty in most cases.
This makes preparing any parens patriae application extremely onerous, as it must establish a clear justification (such as a risk of severe harm or death) for the Court’s intervention to deprive a person or persons of their liberty.
Parens patriae jurisdiction vs Guardianship Orders
In many parens patriae matters, a decision must be made between seeking specific orders in the Supreme Court, rather than applying to the Family Court or Youth Court for guardianship of the child. As it currently stands, the jurisdictions are not mutually exclusive.
In some circumstances, an application for actual guardianship may be more appropriate if the parents are either consistently refusing to consent to treatment or there is a likelihood that they will obstruct the provision of treatment by not presenting the child to hospital.
Determining which jurisdiction to utilise requires careful consideration and it is a balancing act on the circumstances. The parens patriae jurisdiction may be preferable in circumstances where it is not desirable and there is a risk in removing the child from the parents.
The New South Wales case of the Department of Community Services v Y (1999) provides an example of the parens patriae jurisdiction being utilised in quite extraordinary circumstances.
This case concerned a fifteen year old girl suffering from anorexia who had gone through troubling cycles of extreme weight loss. The evidence established that her parents, although arguably well-intentioned, were an obstacle in her recovery. This was predominately due to their continued belief that their child’s illness was caused by a physical condition rather than psychiatric illness.
Examples of how the parents were undermining treatment included:
- Continually discharging her from hospital against medical advice;
- Admitting to eating some of her food in hospital;
- Continually repeating to staff “she was naturally skinny”; and
- Thinking and reporting to medical staff she had a parasite.
The Department of Community Services had been notified of this case by medical staff, and eventually decided to make a parens patriae application to the Supreme Court. This was made concurrently with Children’s Court proceedings for guardianship.
After hearing medical evidence, hearing from the parents and hearing from the child, the Court made extensive orders and the Children’s Court Proceedings were stayed.
A total of 22 orders were made in respect to the medical treatment the child, including:
- The Department of Community Services being granted the custody, care and control of the child; and
- Leave for the staff of a specialist anorexia treatment hospital to detain the child and return her to hospital for treatment and to use reasonable force (if necessary) in doing so.
An Order was even made that allowed the parents to write one letter per week to the child, provided that all such correspondence was checked prior to her reading the letters. These orders show the broad and extensive powers of the jurisdiction.
Parens patriae jurisdiction and ‘Gillick competence’
The 2022 Queensland case of Re A provides a recent example of orders sought in the parens patriae jurisdiction.
The mother of A (who was almost 17 years old) brought an application seeking orders for the administration of gender-affirming stage 2 hormone treatment. The application was made urgently because it was clinically detrimental for A not to receive treatment at the time it was sought. The application was made due to A not being the required age to consent to medical treatment in Queensland.
A was born female but identified as male. The respondent father did not consent to the administration of stage 2 treatment and did not acknowledge that his child had gender dysphoria.
In the proceedings, the issue arose as to whether A was ‘Gillick competent’. This is when children can legally consent to their own treatment if it is believed they have enough intelligence, competence and understanding to fully appreciate what is involved in their treatment.
The Court accepted a long history of gender non-conforming behaviour by A. A further demonstrated an understanding of the nature and consequences of the treatment, as well as the difficulties of reversing the effects of the treatment.
The Court therefore determined A was Gillick competent. On this basis, the Court decided A could lawfully consent to the treatment, and that Court authorisation via the parens patriae jurisdiction was unnecessary.
While this matter was dealt with in Queensland, it will be persuasive in other jurisdictions as to whether Court authority is required if there is any dispute between a Gillick competent child and one or more parent.
While decisions concerning a child’s treatment will ordinarily be made by those with parental responsibility, where there is a dispute between a child’s treating team and parents, the parens patriae jurisdiction can be utilised to ask the Supreme Court to determine the issue.
In determining an application, the best interests of the child are the paramount consideration of the Court. As it is a jurisdiction to be exercised with caution, it is vital in any parens patriae application to establish significant risk to the child if the Court does not intervene.
In determining whether an application in this jurisdiction should be made on behalf of a child, consideration should be given to whether it is possible to establish the child is Gillick competent. This may alleviate the need for Court intervention, assuming the child consents to the treatment sought.
Medical professionals who are concerned about a significant risk to a patient due to a lack of or inability to consent to medical treatment should contact their medical indemnity insurance provider to discuss the circumstances further.