‘Parens Patriae’: The Power of Courts to Make Decisions in a Child’s Best Interests

The New South Wales Supreme Court has ordered a 17-year old female to continue chemotherapy for a cancer, after she refused treatment due to her Christian beliefs.

The decision, reported in the law books as H v AC [2024] SC 40, was delivered on 2 February 2024 and based on the court’s ‘Parens Patriae jurisdiction’.

The doctrine of Parens Patriae empowers the judiciary to place itself in the place of a parent in order to make decisions in the best interests of children, including decisions in family law proceedings as well as others involving a child’s health, care and/or well-being.

Doctors do not accept cancer was cured by God

The teen in the case, who held strong Christian beliefs, had four rounds of chemotherapy after her initial diagnosis ‘ewing sarcoma’. When scans after this treatment showed no visible tumour, the she believed the cancer had been cured by a miracle of God. 

Her parents supported her decision to stop chemotherapy, although doctors expressed concern it was medically impossible her cancer could have been cured, and that the tumour was likely to progress within the following months. 

The doctors expressed the view that, if given time to spread, the cancer would be incurable and ultimately lethal.

The survival rates for ewing sarcoma are not high. Some statistics suggest that in patients aged between 15 to 19 have a survival rate of about 56 percent. For children diagnosed after their disease has spread, the survival rate is even lower – about 30 percent.

The Parens Patriae jurisdiction 

In New South Wales, a patient must be 18 to be considered responsible for their own medical treatment, unless they are otherwise deemed to be competent and capable of acting with self-interest. 

This is the case in all states and territories with the exception of South Australia, where the age of medical consent is 16 years.

And while the Supreme Court found the patient was capable of making informed decisions on her own behalf, it still determined that she must continue her treatment despite the wishes of both her and her parents.

The Parens Patriae jurisdiction is very broad, but it only applies to minors (those under the age of 18 years). 

As stated, it can be used in a range of matters that impact on children, from family law decisions relating to child custody (residence and contact) to allegations of child neglect, and, of course, decisions that impact significantly on health. Ultimately, decisions are meant to be made in the best interests of the child. 

In the case of the 17-year old, the court gave significant weight to the concerns of medical professionals that, if left untreated, her cancer would grow and lead to her death.

What about the rights of the child? 

However, the court’s decision also raises issues around the rights of a child, which represents a sticky juncture where ethics meet the law, and courts must also take into consideration the young person’s maturity, and their ability to understand treatments and procedures.  

When referring to a ‘mature minor’ no set age limits apply, rather their ability to consent is determined on their intelligence and comprehension of the medical treatments proposed.  

The legal position relating to a minor’s capacity to consent to medical treatment was established by a UK case known as Gillick, or Marion’s case, dating back to 1985 and has subsequently been approved by the High Court of Australia. 

It holds that a child’s capacity to consent increases as they approach maturity, and therefore, authority required by their parents for medical content becomes less significant. 

The Gillick competency test for mature minors 

Only a court can determine whether or not a minor is “Gillick competent” – and this includes assessment of a range of factors including age, maturity, intelligence, education, level of independence and the ability to express their wishes. 

To make an opinion about a child’s “intelligence and understanding”, the court will determine whether the minor understands what the treatment is for, what it entails, why it’s necessary, whether there are any alternatives, what the treatment entails, what treatment outcomes and side effects or risks may be, along with the consequences are of not having treatment. 

 However, while the Gillick principle allows for a competent or mature minor to consent to treatment, it does not allow for a corresponding right to refuse treatment.