One of the most difficult areas to navigate in the intersection between law and religion is the dilemma that is faced by a court when asked to adjudicate on differing opinions about medical treatment of young people, when objections to medical treatment are based on religious views. This is an area where a court, when asked to adjudicate, will have to weigh up different interests of the minor- bodily health, and being able to make decisions in accordance wth their faith.

Many such cases have arisen in based on objections to blood transfusions by Jehovah’s Witnesses. But in this post I want to note a careful decision on the issues which was handed down early last year, where the young person involved was from a “mainstream” Protestant church, and was strongly of the view that they had been healed miraculously and that no further treatment was needed. The decision was that of Meek J in the NSW Supreme Court in H v AC [2024] NSWSC 40 (2 February 2024). An important part of the case is that his Honour clearly understood and explained the religious views of the young person, “AC”, in coming to his decision.

By way of background to the legal principles, it is worth noting that any medical procedure involving the touching of a person’s body may amount to the tort (civil wrong) of “battery”, unless it is excused by consent of the person touched or some other defence recognised by the law. His Honour noted this:

At common law, a person who is sui juris has the right to determine what happens to their body, including by consenting to or refusing medical treatment. Non-consensual medical treatment of a sui juris person may constitute a criminal assault and/or a tortious trespass to the person: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 (Marion’s Case) at 267 per Brennan J (as his Honour then was) and at 309-310 per McHugh J; [1992] HCA 15. (at [42])

The situation is more complex when the question of “capacity” to consent arises in the case of a minor (a person under the age of 18 years). In broad terms, parents or guardians usually have legal authority to consent on behalf of their child to a medical procedure (with the exception of some more serious and long-lasting procedures, where consent of a court may be needed.) The law also recognises, however, that even a child under the age of 18 might have sufficient knowledge and understanding of a medical procedure for them to be able to provide consent for themselves. The case that established this principle in the common law world is usually seen to be the English decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick“), which was approved by the High Court of Australia in Marion’s case noted above- see Meek J at [60].

In H v AC, the young lady, AC, had been diagnosed only in July 2023 with Ewing sarcoma, a cancer in the bone. She had received initial treatment, and part way through that process a scan showed no visible evidence of the cancer. AC and her parents are committed Christians, and had been praying for healing. AC saw this scan as showing that her prayers had been answered, and that she was now healed. Her medical practitioners were not convinced that this was so, given that the cancer could still be present in the body but not visible on the scans. After some disagreement between the hospital (anonymised as “H” here) and AC and her family, the hospital initiated these legal proceedings.

The orders that the hospital sought seem odd at first glance, given that background. His Honour summed up the orders sought as follows:

[13] The principal substantive relief sought by H is a declaration that AC has the capacity to refuse the [relevant] treatment, which has been recommended by the plaintiff

[14] Only in the event the Court determined that AC does not have capacity to refuse the recommended treatment did H seek, in the alternative, a declaration that the responsible medical practitioners, nursing and other staff at the hospital may lawfully carry out the recommended treatment on AC.

It seems that the first declaration sought, that AC “has capacity” to refuse the relevant treatment, was sought so that if AC’s wish to not have the treatment was agreed to, the hospital would not be legally liable for the outcome should the cancer still be present and not treated. The second order sought was really, it seems, the hospital’s preferred outcome- that the recommended treatment be carried out.

These orders were sought from the court in its equitable jurisdiction, known as the parens patriae jurisdiction, which has historically been a jurisdiction where courts of equity may make orders to protect the interests of minors: see Meek J at [46]-[70] for a review of this jurisdiction and how it has been exercised in medical cases invoking minors. An important point made by his Honour at an early stage was this: authority establishes that even if a minor is competent to accept or refuse treatment under the Gillick principles, a court of equity will still retain a discretion to over-ride the minor’s views if it thinks that doing so is in the best interests of the minor- see Meek J at [40].

On the question of capacity, his Honour, after a careful review of AC’s situation, concluded that she was competent to give or withhold consent under the Gillick principles. He accepted evidence that she was a “capable, confident, mature and thoughtful young person”- at [187]. She demonstrated that she understood the issues and was aware of the consequences of her decision. She firmly believed that she had been miraculously healed and would not need further treatment. However, she conceded that it was possible the cancer would return, and stated that this would not undermine her faith in God- see [216].

One issue which came up in the assessment of competence was a comment made by an expert giving evidence for the hospital, “Dr C”, who expressed the view in his report that “AC cannot appropriately weigh the risks and benefits of treatment as against non-treatment, given her religious belief that she has been cured” – para [171](4).

Counsel for AC objected to this statement:

[176] … Ms Shea rejected any notion that how a young person (in this case AC) weighs the advantages or disadvantages and various factors or considerations, and what she decides, are relevant criteria to capacity, as is whether the decision is wise or not: T 125. She submitted that Dr C had impermissibly had regard to such a (wisdom) consideration: T 119. Ms Shea contended that the fact that AC holds a certain belief does not mean that she is incapable of making a decision, nor mean that she does not understand the information she has been given. The two things are not mutually exclusive: T 126.

I think counsel for AC was correct here. To accept that any view on a matter coming from a religious perspective should be evidence that the person does not have competence to decide a matter, would be to unjustly penalise persons of faith. Of course there can be debates about whether such a view is correct (even from a religious perspective), or whether it is wise in the circumstances; but holding such a view does not mean that a person lacks capacity to make a decision.

Meek J commented briefly on this issue without formally ruling on it, but it seems fairly clear that he inclined to agree with counsel for AC:

[184] There is no need for me to critique Dr C’s evidence. Ultimately, the importance of the evidence of Dr C and Mr D was not, per se, their own understanding of ‘Gillick competence’, but rather their record of discussions with AC and evidence as to what she said about what she had experienced, thought, believed and her faith. Through examination of the Dr C Report and his cross-examination, I have been able to distinguish between what is effectively the factual basis for the report recording AC’s evidence and the opinion of Dr C. 

Having concluded that AC had capacity to make this decision, Meek J then turned to the question as to whether he should intervene in the matter by exercising the equitable jurisdiction in protection of minors to authorise the carrying out of treatment notwithstanding the views of AC. To reiterate, in his view (supported by authority) the question of whether a minor should undergo, or not undergo, medical treatment was not to be resolved simply by the minor’s ability to provide consent. The court still had a “quasi-parental” role of considering the best interests of the minor.

Again, I think is the correct approach. Too often “consent” of young people has recently been regarded as the only relevant issue in relation to serious medical procedures (such as gender “transition” treatment, for example.) But the fact is that many young people are not fully equipped to weigh up life-changing, or life-threatening, decisions, even as they approach 18 years of age.

In this case, having weighed up various factors in the case, Meek J concluded that despite AC’s wish not to have further treatment, and taking fully into account her genuine religious convictions, it was in her best interests for the treatment recommended by the hospital to go ahead.

Certainly one factor in this decision must be that Meek J, as a judge of the Supreme Court, cannot automatically accept the validity of a person’s religiously formed opinion. This has been seen in a number of cases dealt with by other judges involving a decision of a young Jehovah’s Witness person not to allow blood transfusions which might be necessary to save their life. One of the most challenging of these was X v The Sydney Children’s Hospitals Network [2013] NSWCA 320, where a 17-year-old Jehovah’s Witness boy, supported by his parents, was refusing a treatment needed to save his life because it involved blood transfusions. The trial judge, Gzell J, supported by the Court of Appeal, ruled that the treatment should go ahead. The need to take the religious beliefs of X into full account was mentioned by Basten JA in the Court of Appeal, but it was noted that this could not be finally conclusive:

[64] Nor is the balance necessarily achieved by characterising the young person’s choice as either rational or irrational. Factors, including minority religious beliefs, may be deemed irrational by broader community standards. They are not, for that reason, to be disregarded – indeed with respect to an adult it has been said that “it matters not whether the reasons for the refusal were rational or irrational, unknown or even non-existent”: In re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18;  [1993] Fam 95 at 115 (Lord Donaldson of Lymington MR). Indeed, religious beliefs are internationally accepted as an aspect of an individual’s fundamental autonomy with which the state cannot interfere and should not disregard: Universal Declaration of Human Rights (1948), Art 18; International Covenant on Civil and Political Rights (1966), Art 18; Convention relating to the Status of Refugees (1951), Art 1A(2). Such a motivation is likely to be one to which the Court will accord respect and weight, other things being equal.

[65] To accord a religious belief weight is not to treat it as determinative…

In the end the court in a “secular” legal system (one where no one religious view is given priority) will usually lean in favour of preserving life. So in the X case; so in the case of AC- see para [231].

Appendix- extract of comments on the Christian faith

In the course of his decision, Meek J set out in a very clear way tenets of the Christian faith which informed AC’s decisions, and recognised that these were clearly views shared by many Christian believers. I thought it was worthwhile to reproduce this passage of the decision. They represent, in my view, a very clear exposition of the Christian faith and may be of interest to those not familiar with some of these matters.

[74] Each of Dr C and Mr D state AC believes that she has a personal relationship with Jesus and has “responded to his love and care”: Exhibit P1 [28]; Dr C Report [34]. She regards Jesus as her “lord and saviour”, and believes she would have “eternal life in heaven” after death: Exhibit P1 [54].

[75] AC and her family attend a Church of a particular denomination. AC also attends a youth group of another Christian denomination. AC’s mother indicates that they have been regular attendees and active members of the Church, and that the Church and the youth group are important parts of her life “as she believes part of the Christian life is spending time with others who also share the same beliefs”. A school report from semester one 2022 describes AC as a “young woman of faith” and notes that she attends an optional lunchtime Bible study. Each of Dr C and Mr D describe AC and her parents as “devout” Christians by reference to their particular Christian denomination. 

[76] AC believes that God has been active in her plight and that her cancer has been cured by way of a miracle: Exhibit P1 [30]; Dr C Report [31]. AC, in discussion with Dr C, referenced the many healing miracles of Jesus, and specifically referred to the healing of the bleeding woman and the connection between healing and the woman’s faith in Jesus’ words to her “Daughter, your faith has healed you. Go in peace”: Luke 8:43-48, Bible – New International Version (NIV). 

[77] The noun “miracle” derives its meaning in context. It generally conveys: “an effect in the physical world which surpasses all known human or natural powers and is therefore ascribed to supernatural agency”; “a wonderful thing”; and “a marvel”: Macquarie Dictionary, online ed. 

[78] In the Bible, a number of Hebrew, Aramaic and Greek words are used to refer to the activity in nature and history of the living God. They are variously translated by use of English words such as ‘miracles’, ‘wonders’, ‘signs’, ‘mighty acts’ and ‘powers’: Ian Howard Marshall et al (eds), New Bible Dictionary(3rd ed, 1996, Inter-Varsity Press) (NBD) at 771. 

[79] The Scripture of the Bible contemplates God’s supernatural activity, both in the sense of God’s constant sovereign providence and also his particular acts: NBD at 771. Paul views creation as being continually dependent upon the sustaining activity of God and subject to his sovereign will: Colossians 1:16-17 NIV; NBD 771.

[80] In the Bible, the context of the miracle or sign helps to clarify its purpose. John records Jesus’ first miracle at Cana (turning water into wine) and his last miracle before going to the cross at Bethany (the raising of Lazarus) as expressly revealing his glory: John 2:11; John 11:4, 40 NIV. The miracles or ‘signs’ are not recorded by John as incidental events but as having an elegant, vivid and unmistakable connection to John’s purpose in writing his Gospel: John 20:30-31 NIV. 

[81] Depending upon context, a miracle may have the effect of engendering faith, confirming faith in people or, conversely, hardening the hearts of others: e.g. John 11:45-50 NIV. AC’s specific reference of the miracle in relation to the bleeding woman is a clear example of Scriptural connection between a miracle demonstrating Christ’s glory or character as God and faith.

[82] The noun “prayer” also derives its meaning in context. It generally conveys “a devout petition to, or any form of spiritual communion with, God or an object of worship”: Macquarie Dictionary, online ed. 

[83] Christian prayer is uniquely different from prayer in other religions in at least a couple of respects apt to AC’s circumstances. 

[84] First, a Christian talks to God as the Christian’s heavenly father: Luke 11:2 NIV. This relationship is made possible to the Christian who has been saved through faith (John 3:16 NIV) by grace (Romans 3:21-31; Ephesians 1:7, 2:5, 2:8; 1 Peter 3:18 NIV) and adoption as a child of God: John 1:12, Romans 8:15, 8:23, 9:4; Galatians 4:5, Ephesians 1:5-8 NIV; Stephen Shead, Growing in Prayer – Learning to Pray with Dependence and Delight (2019, Matthias Media) (Shead) 11-12.

[85] Secondly, Christian prayer is the Christian’s faithful response to God as he speaks to the Christian through his word and calling upon God to do what he has promised to do: 2 Sam 7:25-26 NIV. Jesus gives guide for prayer, which guide includes what is known as the Lord’s prayer (Matt 6:9-13; Luke 11:2-4 NIV). Many of the parables teach aspects of prayer: e.g. Luke 11:5-13. A Christian has confidence that if she or he asks God anything according to God’s will, God will hear the prayer and the Christian will receive what is asked: John 14:13-14; 1 John 5:14 NIV. If it is accordance with God’s will, a prayer for saving in the face of death may granted: e.g. Hezekiah’s prayer as recounted in Isaiah 38:1-8 NIV. A prayer for saving may also be declined if it is not in accordance with God’s will. The quintessential example is Jesus’ prayer in Gethsemane (Mark 14: 35-36 NIV): 

Going a little farther, he fell to the ground and prayed that if possible the hour might pass from him.“Abba, Father,” he said, “everything is possible for you. Take this cup from me. Yet not what I will, but what you will.”

[85] Jesus submits to his Father’s will, which (in his case) is for Jesus to suffer and die according to God’s plan: Mark 8:31 NIV.

[86] The famous Australian athlete Betty Cuthbert is a remarkable instance of someone searching for healing, and yet receiving joy by finding God instead. In her own words^[1]:

I’d always loved God but I didn’t know anything about Jesus until I became very sick with multiple sclerosis. When I was 47 someone said to me, ‘Go to that Church and they’ll heal you’. So I went along looking for the healing instead of the healer. After going to different places and finding out more, I found out about the healer, and then I couldn’t care less about the healing. That’s the best thing. I get so much joy out of it and I want to tell other people about it. I think that’s why I was meant to come back to the Olympics in 1964, because now I’m well known and it helps me to tell people about Jesus.

[87] Because of the gift of adoption, prayer is said to be a place of peace and comfort for a Christian, not fear and uncertainty, such that in the approach to God as Father, the Christian can have complete confidence that God will listen with love and respond by doing what is best for them: Shead at 13; Ephesians 3:12 NIV. Christians may be confident that in all things God works for the good of those who love him, who have been called according to his purpose: Romans 8:28 NIV. That ‘good’ includes conforming the believer to the image of Christ (Romans 8:29 NIV) and completing the good work God began in the Christian until the day of Christ’s return (Philippians 1:6 NIV), thus enabling the Christian to ultimately enjoy God’s presence forever: e.g. Psalm 16:9-11; John 3:14-17 NIV; Donald Arthur Carson et al (eds), New Bible Commentary (21st Century ed, 1994, Inter-Varsity Press) at 1141.

[88] In this case, there is evidence that AC believes that if the cancer returns it would represent God’s will, and her belief of death is that she would be returned to Jesus, her “lord and saviour”, and she would have “eternal life in heaven”: Exhibit P1 [54].

[89] The fact that AC describes herself as a Christian having a personal relationship with Jesus, has prayed (and no doubt continues to pray) about her circumstances, accepts God’s will and believes in eternal life with God is, in light of what I have briefly outlined above, entirely conventional within the Christian faith.

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^[1] WebsterWorld, “Betty Cuthbert”, https://web.archive.org/web/20170812172614/http://www.websterworld.com/websterworld/websport/b/bettycuthbert449.html, accessed 30 January 2024