Hospital v Baby M [2020] NSWSC 1481 (available on Caselaw) saw a specialist children’s hospital seek orders in the Court’s parens patriae jurisdiction to authorise cardiac and ear nose and throat surgery on a three month old baby girl, “Baby M”, at a time when the baby’s parents had not given their consent. However before the hearing commenced, the parents changed their position and provided consent.
The matter for consideration became what form the orders to reflect the new consensus should take, that is, whether the Court should simply note that the parents now consent to the cardiac surgery or whether the Court should make declarations that the hospital is authorised to perform those specific procedures.
Senior counsel for the hospital submitted that it is in the interests of all parties – the baby, the parents and the doctors – to have clarity and certainty, to avoid any confusion going forward, and to ensure that there is no change of direction in respect of the surgery. Senior counsel for the parents submitted that, the parents having now given their consent, there was no need for the Court to exercise its parens patriae jurisdiction. Counsel for Baby M agreed that a notation of the parents’ consent was appropriate and gave sufficient clarity in the circumstances.
The Court held at [11] that where the parents give their consent, there is no need for the Court to act as “supreme parent” to make decisions about their baby for them. Accordingly the Court simply noted that the parents had consented to the proceedures.