In Secretary DFFH v Hage (a pseudonym) [2024] VSC 764 (DFFH v Hage), the Supreme Court of Victoria (the Court) considered whether authorising the restraint of a pregnant minor with a learning disability was justified to facilitate medical treatment deemed to be in her best interests.

On 5 December 2024, the applicant (the Secretary) informed the Court of an application under the Court’s parens patriae jurisdiction (jurisdiction that allows a Court to make orders to protect children and people who are otherwise unable to look after themselves) concerning the medical care of the respondent, who is referred to by the pseudonym ‘Beverley Hage.’ The Secretary asserted that Beverley has an intellectual disability and lacks the capacity to make decisions regarding her medical treatment.

Beverley was 15 years old and 32 weeks pregnant at the time of the Hearing and was subject to a ‘Care by Secretary Order,’ which grants the Secretary parental and guardianship responsibilities under the Children, Youth and Families Act 2005 (Cth).

At the time of the proceedings, Beverley was residing in a secure welfare service. Due to her pregnancy, she had been referred to the Royal Women’s Hospital for medical care. Practitioners from the secure welfare service, along with the obstetric team at the hospital, sought to provide her with appropriate treatment.

The Secretary requested Court orders permitting Beverley’s restraint to ensure she receives necessary medical care in her best interests. The most urgent requirement was for blood tests to screen for various conditions. However, Beverley has a strong fear of needles and had refused to consent to the procedure.

Counsel for Beverley requested an adjournment, arguing that proceeding without first consulting with Beverley would be unfair. However, this was refused by the Judge who ruled that certain aspects of the relief sought may have been so urgent that immediate action was necessary. The Judge limited the hearing to only the most pressing matters, allowing the Secretary’s evidence to be presented while preserving the option to recall witnesses for further cross-examination at a later stage.

The central issues to be decided at the hearing were:

1. Whether there was there a real risk that Beverely would go into early labour imminently?
2. If such a risk existed, which medical treatments and corresponding restraints would be in her best interests to authorise urgently?
3. If the risk of imminent pre-term labour was remote, whether any medical interventions were still so critically urgent that they would warrant immediate orders for Beverley’s restraint, even without adequate notice of the proceedings being given to her?

The evidence presented at the hearing did not establish that Beverley faced an imminent risk of going into labour.

It was noted that Beverley had been diagnosed with a ‘Moderate Intellectual Disability,’ leading the Judge to conclude that she may not fully comprehend the medical treatment recommended by her obstetric doctors, particularly the significance of having her blood taken for testing.

Since there was no immediate risk of pre-term labour, the Judge did not extensively consider the second issue. While the blood tests were deemed beneficial for Beverley, the evidence did not demonstrate that they were urgent enough to justify restraining her for the procedure. His Honour expressed concern that forcibly restraining Beverley to obtain a blood sample could cause psychological harm, and proceeding with court-ordered restraints without prior notice to her would only exacerbate this harm.

As a result, the Judge refused to grant any order authorising Beverley’s restraint. However, the court acknowledged that blood testing was in her best interests and suggested that if she continued to refuse, the argument for some level of restraint could become more compelling in the future.

Ultimately, the case of DFFH v Hage illustrates not only the broad scope of the Court’s parens patriae jurisdiction, but also the complex and often delicate balancing act the Court must perform when navigating the tension between safeguarding a child’s best interests and upholding their right to bodily autonomy. In this case a conservative approach to exercising the parens patriae jurisdiction was preferred given the lack of sufficient urgency.

Nicholes Family Lawyers have expertise advising and representing parties in relation to child protection matters. If you would like to arrange an initial consultation, please contact our office at 03 9670 4122.