Consent, capacity and the Supreme Court in the role of a ‘careful parent’ Ð Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624

Author: Sarah Henry

Judgement Date: 14th May, 2016

Citation: Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624

Jurisdiction: Supreme Court of New South Wales[1]


  • A capable individual can consent to or refuse any medical treatment however irrational that decision may be. An individual who cannot understand the general nature and effect of medical treatment is incapable of consenting to or refusing that treatment.
  • Where an individual lacks capacity and the proposed medical treatment is “special medical treatment” pursuant to s 33(1) of the Guardianship Act 1987 (NSW) (Guardianship Act), consent can only be given by the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court of New South Wales (Supreme Court). Special medical treatment includes termination of pregnancy.2 Special medical treatment must be manifestly in the best interests of the patient.
  • The court’s parens patriae jurisdiction is “ancient, wide-ranging and far-reaching”3. It involves the court effectively acting as a careful parent to protect children and others under a legal disability. The jurisdiction is only exercised in exceptional cases and with considerable caution so that there is no interference in the free will of a capable adult.


In May 2016, a 19-year-old patient was in intensive care in a Local Health District’s (the applicant) hospital. The patient was intellectually disabled, suffered from pre-existing renal problems and was also pregnant. Despite haemodialysis and multiple anti-hypertensive medications, the patient’s blood pressure could not be effectively controlled. The patient’s treating doctors considered her to be at risk of serious injury or possibly death unless her pregnancy was terminated (the proposed treatment). It was accepted that given its gestation, the foetus would not survive. The patient initially refused to consent to the proposed treatment and later purported to give qualified consent.

On 10 May 2016, the patient’s treating doctors applied to the NCAT for permission to perform the proposed treatment. The evidence before the NCAT included a report from a psychiatrist who expressed the view that the patient did not have capacity to refuse or consent to the treatment. The NCAT conducted a telephone hearing on 11 May 2016 and handed down its decision on 12 May 2016. The NCAT effectively dismissed the application on the basis that the patient had the requisite capacity to refuse the proposed treatment. The NCAT did not publish reasons.

The applicant and the patient’s treating doctors had ongoing concerns about the patient’s capacity. On 13 May 2016, the applicant commenced proceedings in the Supreme Court seeking to appeal the NCAT’s decision. The applicant also sought a declaration in the court’s parens patriae jurisdiction, which would allow the doctors to lawfully carry out the proposed treatment.

His Honour Sackar J, conducted an urgent hearing on 14 May 2016, convening at the patient’s hospital bedside in the morning and again later that evening after her condition deteriorated. His Honour delivered an ex tempore decision late on 14 May 2016. His Honour’s judgment was published on 23 May 2016.

The Supreme Court made suppression and non-publication orders in relation to the names and identifying details of the patient, her family, the applicant, the hospital and the treating and independent medical practitioners.


His Honour determined that the patient lacked the requisite capacity to consent to the proposed treatment, and he made orders late on 14 May 2016 allowing the proposed treatment to proceed.

His Honour granted leave to appeal the NCAT’s decision by way of a new hearing and permitted the reception of fresh evidence. Following the NCAT’s decision, the applicant had obtained medical reports from five doctors, including the patient’s treating obstetrician and treating nephrologist.

His Honour determined that it was also appropriate for the Supreme Court to invoke its inherent parens patriae jurisdiction. His Honour noted that although the Guardianship Act has been described as a “statutory expression” of the court’s parens patriae jurisdiction4, the legislation does not displace the court’s inherent parens patriae jurisdiction.

His Honour stated that “[The patient] did not adequately understand nor was capable of balancing or making an informed decision such as to permit her to refuse the treatment recommended5 and made the following observations and finding relevant to his determination:

  • The patient was largely, if not wholly, dependent on her mother. The patient’s mother held very strong views and at all times purported to speak on the patient’s behalf. His Honour had grave concerns about whether even the patient’s mother really understood the significance of the risks the patient faced if intervention did not occur. The patient neither had the strength nor the ability to contest the will of her mother who was well meaning, but frankly misguided”6
  • The patient was effectively uncommunicative during the morning bedside hearing. She appeared to be seriously limited in her capacity to understand what was put to her
  • Significant weight was placed on the evidence given by the Legal Aid solicitor (appointed as separate representative for the patient) about her private exchange with the patient at the hospital on the morning of 14 May 2016. His Honour stated that “[M]any of the poignant answers É betray a real lack of understanding on [the patient’s] part É. It also confirms the rather dominant position of her mother”.7

His Honour concluded that based on his own observations, the report of the staff specialist psychiatrist and the exchange between the patient and the Legal Aid solicitor, there was “more than ample material to rebut and displace the presumption [in favour of capacity] which would normally be present”.8

In quashing the NCAT’s decision, His Honour found that:

  • The NCAT telephone hearing did not adequately explore the capacity issues
  • “There was no objective support for NCAT’s finding [the patient] had the requisite capacity”9
  • On its face, the NCAT’s decision, unaccompanied by reasons, was “at best cryptic and quite contrary to medical evidence”.10

By the late evening of 14 May 2016, the patient’s condition had deteriorated and become extremely serious. The medical specialists were gravely concerned about what would occur if intervention was unduly delayed. His Honour delivered his decision ex tempore that night.

In light of his views about the patient’s lack of capacity and taking into account the medical evidence his Honour made orders allowing the proposed medical treatment to proceed.

Why this Case Note is important

This case involved complex personal, medical and legal issues. After the NCAT’s ruling, the patient’s doctors were in an unenviable situation. The patient’s condition was getting worse and the doctors had legitimate concerns that the NCAT had incorrectly assessed the patient’s capacity. If they operated without consent, the doctors were potentially committing a criminal offence. The applicant initiated Supreme Court proceedings and the urgent judicial rulings clarified the doctors’ position and potentially saved the patient’s life.

There were procedural hurdles for the applicant to overcome in an appeal from the NCAT decision. By simultaneously seeking orders pursuant to the Supreme Court’s protective parens patriae jurisdiction the applicant achieved urgent court approval to proceed with the proposed medical treatment.

  1. Sackar J.
  2. Regulation 9 of the Guardianship Regulation 2010 (NSW).
  3. Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624, 21.
  4. Lindsay J in C v W [2015] NSWSC 1174, 90.
  5. Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624, 79.
  6. Ibid, 85.
  7. Ibid, 55.
  8. Ibid, 81.
  9. Ibid, 90.
  10. Ibid, 87.