Secretary of the Department of Health and Community Services v JWB

Marion's Case
Court	High Court of Australia
Full case name	Secretary, Department of Health and Community Services v JWB and SMB
Decided	6 May 1992
Citation(s)	(1992) 175 CLR 218
Case history
Prior action(s)	On appeal from the Full Court of the Family Court of Australia
Subsequent action(s)	none
Court membership
Judge(s) sitting	Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ
Case opinions
(0:0) holding (per...)

Marion's Case, the common name for the case Secretary of the Department of Health and Community Services v JWB and SMB,^[1] is one of the primary cases under Australian law for deciding whether a child has the capacity to make decisions for themselves, and when this is not possible, who may make decisions for them regarding major medical procedures. It largely adopts the views in Gillick v West Norfolk Area Health Authority, a decision of the English House of Lords.

Background to the Case

"Marion", a pseudonym for the 14-year-old girl at the centre of this case, suffered from intellectual disabilities, severe deafness, epilepsy and other disorders. Her parents, a married couple from the Northern Territory sought an order from the Family Court of Australia authorising them to have Marion undergo a hysterectomy and an oophrectomy (removal of ovaries)- the practical effect would be sterilisation and preventing Marion from being able to have children, and also many of the hormonal effects of adulthood.

Under the Family Law Act the primary concern for matters involving children is that the court must act in the child's best interests. The majority of the Court made it clear that this was not a consideration in this case, but that it was merely deciding a point of law and that the decision about "best interests" would be left to the Family Court of Australia after the case.^[2]

The main legal debate that arose was: who has the legal authority to authorise the operation? Three options existed: the parents (as legal guardians of their daughter), Marion, or only by order of a competent court, such as the Family Court of Australia.

The Department, together with the Attorney-General for the Commonwealth of Australia, argued that only this latter option was possible - that only a court could authorise such a major operation.

The parents, however, "argued that the decision to sterilise a child is not significantly different from other major decisions that parents and guardians have to make for children and that the involvement of the Family Court is optional and of a "supervisory nature" only. Their argument was that, provided such a procedure is in the best interests of the child, parents as guardians can give lawful consent to a sterilisation on behalf of a mentally incompetent child."^[3]

Judgment

The High Court of Australia recognised the right of everyone to bodily integrity under national and international law, made a distinction between therapeutic and non-therapeutic surgical procedures, and the duty of surrogates to act in the best interests of the incompetent patient.

In the case, the High Court ruled that whilst parents may consent to medical treatment for their children, this authority does not extend to treatment which is not in the child’s best interests. Second, the Court held that where medical treatment has sterilisation as its principal objective, parents do not have the authority to consent on behalf of their child.

Obiter dictum

A statement in paragraph twelve that parents may grant surrogate consent for the non-therapeutic circumcision of male children is obiter dictum and not part of the judgment. Male circumcision was not at issue in this case and no evidence or testimony was offered regarding male circumcision.

See also

References