Secretary, Department of Health and Community Services v JWB (Marion's Case)
175 CLR 218106 ALR 385
(Judgment by: Brennan J) Court:
Judges:
Mason CJ
Brennan JDeane J
Dawson J
Toohey J
Gaudron J
McHugh J
Judgment date: 6 May 1992
Canberra
Judgment by:
Brennan J
List of Judges
BRENNAN J. Marion (that is not her true name) is a child of 14 years. She lives in the Northern Territory. She is said to be intellectually disabled and her parents think she should be sterilized. Subject to s 26(1)(d) of the Criminal Code of the Northern Territory, it would be an offence under ss 181 and 186 of the Code to remove Marion's uterus or ovaries without her consent. Subject to the same provision, removal of any of those organs without Marion's consent would amount also to an offence of assault punishable under s 188(2)(a) of the Code unless the removal falls within the exception of "medical treatment ... reasonably needed" in the definition of assault in s 187(c). Marion's intellectual disability is such that she is unable to give or refuse consent to the removal of her uterus and ovaries. But the removal would be lawful if an authority could lawfully be granted and were granted so as to satisfy s 26(1)(d) of the Code. That provision reads as follows:
"An act, omission or event is authorized if it is done, made or caused -
...
(d) subject to subsection (3), pursuant to authority, permission or licence lawfully granted."
Section 26(3) provides:
"A person cannot authorize or permit another to kill him or, except in the case of medical treatment, to cause him grievous harm."
This appeal was conducted on the footing that sub-s.(3) has no application in the present case because of Marion's disability. It is therefore only an "authority, permission or licence lawfully granted" by a competent third person that can justify for the purposes of the criminal law the performance on Marion of an hysterectomy or ovariectomy. Similarly it is only such an authority, permission or licence that can justify the performance of either of those surgical operations for the purposes of the civil law. Without obtaining such an authority, permission or licence, a doctor who removes any of Marion's organs would be liable in an action for trespass [F125] . The question is whether Marion's parents (who are her natural and legal guardians) or a court can, by giving an authority to remove her uterus or her ovaries or all those organs, attract the protection of s 26(1)(d) of the Code and convert what would otherwise be a trespass into a lawful (that is, non-actionable) procedure. In substance, that is the thrust of the amended questions set out in the case stated by Nicholson CJ and variously answered by the members of the Full Court.
The Social and Legal Context
The questions raised by this case starkly demonstrate the quandary of the law when it is invoked to settle an issue which is a subject of ethical controversy and there are no applicable or analogous cases of binding authority. Although the issues in this case relate to the law's protection of the physical integrity of a person suffering from an intellectual disability, there is no clear community consensus on these issues which the courts or the legislature can translate into law. Nevertheless, concrete and poignant cases - Marion's among them - arise for decision. In such a case, a court must try to identify the basic principles of our legal system and to decide the issues in conformity with those principles.
The appeal to this Court does not require the ultimate merits of the application to be decided, but the questions of authority and jurisdiction raised by the amended stated case cannot be answered except by reference to the principles which define and govern the law's protection of physical integrity. The questions of authority and jurisdiction are adjectival and it is not possible to answer them without determining the substantive law which the respective repositories of authority and jurisdiction are to apply. To determine the repository of a power to grant a valid authority for sterilization without reference to the governing principles is simply to leave the repository to decide for or against sterilization according to an unguided discretion. Conversely, to ascertain the governing principles without determining the repository of the power is to state a rule without providing for its application.
The questions in the amended stated case are directed to ascertaining the repository of a power to grant a valid authority for the removal of Marion's organs without her consent but those questions do not in terms refer to the scope of the power. The questions, though stated with specific reference to Marion, were posed before the facts have been ascertained and the only fact which can therefore be assumed is Marion's incapacity to consent or to refuse consent to surgery. If the questions be understood as enquiring whether a parent, a guardian or a court has power validly to authorize the sterilization of any child who is intellectually incapable of giving or refusing consent to his or her sterilization, the answer is that there is no such broad power: neither parents nor other guardians nor courts have power to authorize sterilization simply because a child is intellectually disabled. It is necessary first to consider the relevant principles which govern the extent to which authority can lawfully be given to invade the physical integrity of the intellectually disabled and the circumstances in which such an authority can be given before answering the question: who can lawfully give that authority?
The right to integrity of the person
In Collins v. Wilcock [F126] , Robert Goff L.J. said:
"The fundamental principle, plain and incontestable, is that every person's body is inviolate, it has long been established that any touching of another person, however slight, may amount to a battery. ... The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries [F127] :'the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner.'
The effect is that everybody is protected not only against physical injury but against any form of physical molestation."
Blackstone declared the right to personal security to be an absolute, or individual, right vested in each person by "the immutable laws of nature" [F128] . Blackstone's reason for the rule which forbids any form of molestation, namely, that "every man's person (is) sacred", points to the value which underlies and informs the law: each person has a unique dignity which the law respects and which it will protect. Human dignity is a value common to our municipal law and to international instruments relating to human rights [F129] . The law will protect equally the dignity of the hale and hearty and the dignity of the weak and lame; of the frail baby and of the frail aged; of the intellectually able and of the intellectually disabled. Thus municipal law satisfies the requirement of the first paragraph of the 1971 United Nations Declaration on the Rights of Mentally Retarded Persons which reads:
"The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings."
Our law admits of no discrimination against the weak and disadvantaged in their human dignity. Intellectual disability justifies no impairment of human dignity, no invasion of the right to personal integrity.
Although the law's respect for the unique dignity of every person is the same, the protection of physical integrity which is required to preserve the dignity of one person may change from time to time and it may differ from the protection of physical integrity required to preserve the dignity of another. Differing measures of protection are required according to the physical and mental capacities of individuals at particular times: the baby whose dignity is respected by being carried and cared for by his or her parents grows into a man or woman whose dignity would be offended by such treatment; a donation of blood by a person of full age and understanding may enhance dignity, while the extraction of blood from a person who is incapable of consenting is an invasion of that person's physical integrity. Human dignity requires that the whole personality be respected: the right to physical integrity is a condition of human dignity but the gravity of any invasion of physical integrity depends on its effect not only on the body but also upon the mind and on self-perception. In assessing the significance of sterilization of a female child, it is erroneous to have regard only to the physical acts of the anaesthetist and surgeon (even when major surgery is performed involving the removal of the uterus and ovaries) and to the physiological consequences. Regard must also be had to the disturbance of the child's mind and the emotional aftermath of the sterilization and a comparison must be made between her self-perception when sterilized and the perception she would have had of herself if she had been permitted to live with her natural functions intact.
A person who is sui juris is capable of waiving his or her right to personal integrity unless the waiver is contrary to the public interest [F130] . The law accepts that a person who is sui juris can consent to what would otherwise amount to an assault or trespass without impairment of dignity, although the interest of society in the physical integrity of its members precludes the law from giving effect to a consent to the doing of grievous harm [F131] . Judicial views have differed [F132] as to whether at common law a person who is sui juris can give an effective consent to his or her own sterilization. Under the Northern Territory Code, the exception in s 26(3) arguably permits sterilization of a person who, being sui juris, consents to the procedure, but it is not necessary to decide that question in this case. The hypothesis on which these proceedings are conducted is that Marion is intellectually disabled to the extent that any operation upon her would be done without her consent. Sterilization of an intellectually disabled child requires justification of a compelling kind, for involuntary sterilization is a serious invasion of that child's personal integrity and a grave impairment of that child's human dignity.
It is misleading to speak of an authorization given by a third party to administer medical treatment to an intellectually disabled child as a substituted consent. "Substituted consent" is semantic leger demain [F133] . Such an authorization is the very antithesis of consent, for it authorizes the administration of medical treatment to the child irrespective of consent. Unlike an informed and actual consent to medical treatment given by a person who is sui juris, such an authorization is not a protection of the dignity of the child who is subjected to the treatment. The extent and significance of the invasion of personal integrity involved in sterilization varies, of course, with the procedure proposed. A radical hysterectomy with ovariectomy is far more invasive than a tubal ligation or the depositing of long-acting hormones. And any of these procedures is more invasive than the oral administration of hormones that produce temporary infertility. In assessing the impairment of human dignity in any of these cases, it is necessary to take into account the measure of physical invasion and, importantly, the effect on the child's mind and self-perception of the proposed procedure.
Each of us perceives his or her own identity and personality in terms which reflect the subjective appreciation of his or her own body, its attributes and functions. We may not see ourselves as others see us but our own perception of ourselves is entirely valid. The right to physical integrity protects a person's self-estimate The law can reasonably assume that a person who is sui juris and who consents to the application of force to his or her body can adjust his or her self-estimate to comprehend an invasion of physical integrity. But such an assumption cannot be made in a case where a child who is intellectually disabled to a significant degree is subjected to a substantial invasion of his or her physical integrity. In the world in which that child perceives himself or herself to be living, the child's self-estimate is entirely valid, however defective or limited that estimate may appear to an observer to be. Moreover, that world and that self-estimate live in the mind of the child to which the outside world, even loving parents, have only limited access. The more profound the intellectual disability, the more limited the access. Yet, if a third party is to be empowered to authorize the compulsory sterilization of an intellectually disabled child, the third party must be able to take account of the degree of impairment of the child's dignity entailed by the sterilizing procedure. It follows that no authority for sterilization should be given unless some compelling justification is identified and demonstrated. A substituted "consent" does not provide its own justification. I turn to examine the circumstances in which a repository of a power to authorize sterilization can be justified in exercising it. An obvious justification exists when the proposed treatment is therapeutic.
Therapeutic medical treatment
It is necessary to define what is meant by therapeutic medical treatment. I would define treatment (including surgery) as therapeutic when it is administered for the chief purpose of preventing, removing or ameliorating a cosmetic deformity, a pathological condition or a psychiatric disorder, provided the treatment is appropriate for and proportionate to the purpose for which it is administered. "Non-therapeutic" medical treatment is descriptive of treatment which is inappropriate or disproportionate having regard to the cosmetic deformity, pathological condition or psychiatric disorder for which the treatment is administered and of treatment which is administered chiefly for other purposes.
The distinction between therapeutic and non-therapeutic medical treatment was adopted by the Supreme Court of Canada in Re Eve [F134] as the criterion for distinguishing permissible from impermissible sterilization of an intellectually disabled child, though the definitions which I have attempted were implied rather than expressed in the judgment of the Court delivered by La Forest J. Notwithstanding the unanimous judgment of that Court, in In re B (A Minor) [F135] , Lord Hailsham of St Marylebone L.C. dismissed the distinction in relation to the facts in that case as "totally meaningless, and, if meaningful, quite irrelevant to the correct application of the welfare principle" which his Lordship stated in these terms [F136] :
"in the exercise of its wardship jurisdiction the first and paramount consideration is the well being, welfare, or interests (each expression occasionally used, but each, for this purpose, synonymous) of the human being concerned, that is the ward herself or himself."
Similarly, Lord Bridge of Harwich [F137] thought that the drawing of a distinction between therapeutic and non-therapeutic therapeutic operations would "divert attention from the true issue, which is whether the operation is in the ward's best interest".
The welfare principle is, in England and elsewhere, statutorily binding on courts exercising jurisdiction over the guardianship and custody of infants. The effect of a statute which declares the welfare of an infant to be "the first and paramount consideration" was explained by Dixon J. in Storie v. Storie [F138] :
"The word 'first' as well as the word 'paramount' shows that other considerations are not entirely excluded and are only subordinated. The provision proceeds, however, to deny superiority to the claim of one parent over the other 'from any other point of view' scil. other than the welfare of the child. Section 145, which comes from the earlier Guardianship of Infants Act 1886 s 5, gives the Court power to make such order as it thinks fit 'having regard to the welfare of the infant and to the conduct of the parents and to the wishes as well of the mother as of the father.' In administering these provisions the courts do not assume the functions of a children's welfare board seeking to discover, independently of parental and family relationship, the most eligible custodian, locality and environment for the upbringing of the infant: cf. per Lord Clyde and Lord Sands, Hume v. Hume [F139] .
The traditional view is still followed in the courts that prima facie it is for the welfare of a child that it should enjoy the affection and care of parents and be brought up under their guidance and influence."
In ascertaining where the welfare of a child lies, the courts have sought to discover what is in the child's "best interests". The "best interests" approach focusses attention on the child whose interests are in question. By asserting that the child's "best interests" are "the first and paramount consideration", the law is freed from the degrading doctrines of earlier times which gave priority to parental or, more particularly, paternal rights to which the interests of the child were subordinated [F140] . But, that said, the best interests approach does no more than identify the person whose interests are in question: it does not assist in identifying the factors which are relevant to the best interests of the child [F141] . The summary rejection by the House of Lords of the criterion offered by Re Eve left their Lordships without any guidelines by which to decide In Re B - or, at least, without guidelines that could be articulated for general application.
That is because the best interests approach offers no hierarchy of values which might guide the exercise of a discretionary power to authorize sterilization, much less any general legal principle which might direct the difficult decisions to be made in this area by parents, guardians, the medical profession and courts. It is arguable that, in a field where the law has not developed, where ethical principles remain controversial and where each case turns on its own facts, the law should not pretend to too great a precision. Better, it might be said, that authority and power be conferred on a suitable repository - whether it be parents or guardians, doctors or the court - to decide these difficult questions according to the repository's view as to the best interests of the child in the particular circumstances of the case. In that way, it can be said, the blunt instrument of legal power will be sharpened according to the exigencies of the occasion. The absence of a community consensus on ethical principles may be thought to support this approach. But it must be remembered that, in the absence of legal rules or a hierarchy of values, the best interests approach depends upon the value system of the decision-maker. Absent any rule or guideline, that approach simply creates an unexaminable discretion in the repository of the power. Who could then say that the repository of the power is right or wrong in deciding where the best interests of an intellectually disabled child might lie when there is no clear ethical consensus adopted by the community? An authorization to sterilize might be reviewable by a tribunal, but what guidance would the best interests approach give the tribunal? The problem was identified by Professor Ian Kennedy [F142] :
"To decide any case by reference to the formula of the best interests of the child must be suspect. To decide Re B this way is profoundly to be regretted. The best interests formula may be beloved of family lawyers but a moment's reflection will indicate that although it is said to be a test, indeed the legal test for deciding matters relating to children, it is not really a test at all. Instead, it is a somewhat crude conclusion of social policy. It allows lawyers and courts to persuade themselves and others that theirs is a principled approach to law. Meanwhile, they engage in what to others is clearly a form of 'ad hocery'. The best interests approach of family law allows the courts to atomise the law, to claim that each case depends on its own facts. The court can then respond intuitively to each case while seeking to legitimate its conclusion by asserting that it is derived from the general principle contained in the best interests formula. In fact, of course, there is no general principle other than the empty rhetoric of best interests; or rather, there is some principle (or principles) but the court is not telling. Obviously the court must be following some principles, otherwise a toss of a coin could decide cases. But these principles, which serve as pointers to what amounts to the best interests, are not articulated by the court. Only the conclusion is set out. The opportunity for reasoned analysis and scrutiny is lost."
Of course the variable circumstances of each case require evaluation and judicial evaluations of circumstances vary, but the power to authorize sterilization is so awesome, its exercise is so open to abuse, and the consequences of its exercise are generally so irreversible, that guidelines if not rules should be prescribed to govern it. The courts must attempt the task in the course of, and as a necessary incident in, the exercise of their jurisdiction. That is not to say that the courts should arrogate to themselves the power to authorize sterilizations of intellectually disabled children, but it is to say that it has become the duty of the courts - and, in the present case, specifically the duty of this Court - to define the scope of the power to authorize sterilizations of intellectually disabled children and the conditions of exercise of the power, and to determine the repository of the power. The power cannot be left in a state so amorphous that it can be exercised according to the idiosyncratic views of the repository as to the "best interests" of the child. That approach provides an insubstantial protection of the human dignity of children; it wraps no cloak of protective principle around the intellectually disabled child. And yet, as Professor Kennedy points out, that is the very purpose of involving the legal process - a purpose which the best interests approach defeats so that "the law fails the woman-about-to-be-sterilised" [F143] .
The anxious goodwill of the repository of the power - whether parents, guardians or courts - can generally be assumed, but there are too many factors which tend to distort a dispassionate and accurate assessment of the true interests of the child. There are some powerful if unarticulated influences affecting, albeit in good faith, the presentation of information on which a decision as to the best interests of the child is to be made and the making of that decision. I mention some of those influences: the interests of those who bear the burden of caring for the child, the interests of those who will be involved in the sterilization if it proceeds, the scarcity of public resources, the widespread tendency to dismiss intellectually disabled people as not deserving of full human dignity (especially if their powers of communication are defective) and common misconceptions [F144] (for example, that there is a substantial risk that any intellectually disabled female will bear defective children). Again, Professor Kennedy points out that, by transforming a "complex moral and social question" into a question of fact, the best interests approach leaves the court in the hands of "experts" who assemble a dossier of fact and opinion on matters which they deem relevant "without reference to any check-list of legal requirements" [F145] . It is not possible for the law to neutralise those influences, but it is possible for the law to define the issues with sufficient objectivity to minimize the prospect that those influences will undermine the law's protection of the human dignity of the intellectually disabled child.
If the pragmatism of the best interests approach were to be embraced for want of principle to govern the exercise of the power, the choice of the repository of power would be extremely difficult. On the one hand, parents and guardians, who bear the immediate responsibility for a child's welfare and frequently bear the burden of her care, would have a strong claim to be the repository of the power. On the other, the courts, whose judges are removed from the burdens of and pressures upon parents and guardians and who would bear no personal responsibility for any decision they might make, could offer some check upon abuses of the power. A third choice would be to require the concurrence both of parents or guardians and of the court as a condition of the exercise of the power. If no principle other than the best interests approach is to govern the exercise of the power, it would be necessary to adopt the third choice to secure for the child the protection which neither of the first two choices could offer, making provision for a special procedure (as was proposed in In re F (Mental Patient: Sterilization) [F146] in an attempt to safeguard the interests of the child. That would be a cumbersome and costly expedient which, if the approach in Re Eve is followed, need not be adopted.
With the greatest respect for the views expressed by their Lordships in Re B, I find the decision of their Lordships in Re Eve more conducive to the maintenance of the human dignity of the intellectually disabled and more in accord with legal principle. The test of therapeutic medical treatment recognizes the importance of personal integrity and of the maintenance and enhancement of natural attributes to the welfare of the child. By comparison, the best interests approach is useful only to the extent of ensuring that the first and paramount consideration is the interests of the child, not the interests of others. That approach furnishes no generalend 175 CLR 273; start 175 CLR 274 guidance as to the factors which are relevant to the welfare of the child.
Of course, factual difficulties are unavoidable in deciding whether medical treatment is therapeutic or non-therapeutic but, in principle, the distinction is clear and, in particular, the purpose of therapeutic medical treatment can be clearly distinguished from other purposes. Therapeutic medical treatment is calculated to enhance or maintain as far as practicable the physical or mental attributes which the patient naturally possesses; it is not calculated to impair or destroy those attributes and the capacities they afford. Thus, there is a rationale which justifies the administration of therapeutic medical treatment without the patient's consent when the patient is incapable of consenting or refusing consent. It needs no argument to show that a malignant tumour of the uterus justifies the performance of an hysterectomy or that multiple cysts on an ovary may dictate its surgical removal. However, where menstruation produces or is likely to produce a psychiatric disorder of such severity as to require its suppression - as occurred in Re X [F147] - consideration must be given to the different treatments reasonably available and appropriate to suppress menstruation and to their medical advantages and disadvantages in order to ensure that the least invasive of the treatments is selected. Proportionality and purpose are the legal factors which determine the therapeutic nature of medical treatment. Proportionality is determined as a question of medical fact. Purpose is ascertained by reference to all the circumstances but especially to the physical or mental condition which the treatment is appropriate to affect.
The propriety of authorizing sterilization for therapeutic purposes is not reasonably open to doubt. Therapeutic medical treatment falls clearly within the exception of "medical treatment ... reasonably needed" in s 187(c) of the Code. When the purpose of a proposed sterilization is therapeutic, the invasion of the child's physical integrity, the disquieting of her mind and any change in her self-perception are justified by the need to maintain to the maximum extent or to enhance the child's natural physical and mental attributes. The invasion of the child's personal integrity is then the means of maintaining or enhancing the attributes and functions which, so far as they may, contribute to her human dignity. The propriety of authorizing sterilization for non-therapeutic purposes is more problematic.
Non-therapeutic sterilization
If sterilization is contemplated to secure a non-therapeutic purpose, the invasion of the child's personal integrity can be justified only if it can be shown that the non-therapeutic purpose possesses some higher value than the preservation of her physical integrity. Clearly, sterilization could not be justified in order to secure some base purpose - for example, to prevent the birth of a child who would disappoint the testamentary expectations of a residuary beneficiary. Another base purpose which would now be commonly recognized as such, though it was given a higher value in earlier days [F148] before the uncivilized practices of Nazism revealed its hideous implications, is the purpose of eugenic selection. Economic arguments can be mounted in support of a policy of preventing the birth of defective children and those arguments can be supported by a desire to alleviate the emotional and physical burden of caring for them but, even in a case where an intellectual disability is transmissible, the involuntary sterilization of a girl is too high a price to pay to avoid the risk. A law which sacrifices the human dignity of individuals in order to avoid reasonable calls by the disabled upon public resources and to avoid the need for compassionate assistance to the disabled inverts the civilized priority of values and depletes the humanity of society. Financial security and comfort, though legitimate objectives in themselves, are not to be preferred over the equal protection by the law of the human rights of every member of the community. The sterilization of a human being simply in order to prevent him or her from becoming a parent is an extreme denial of that person's human rights.
However, between therapeutic purposes on the one hand and manifestly base purposes on the other, a variety of different purposes may appear which many would regard as of significant value in assessing the "best interests" of an intellectually disabled child. The purposes which fall into this category can be gathered under the broad description of "preventative": to prevent the risk of a pregnancy which the child could not properly understand and the concomitant risk of parenthood with responsibilities beyond the capacity of the child to discharge. These risksend 106 ALR 424; start 106 ALR 425 are an understandable source of anxiety to parents, guardians and others who have a genuine concern for the welfare of an intellectually disabled child. These are risks which create an understandable anxiety in many parents, guardians and others who have a genuine concern for the welfare of a normal child. In the case of a normal female child, it would be wholly unacceptable to permit sterilization in order toend 175 CLR 275; start 175 CLR 276 prevent pregnancy or parenthood, though those events might be thought to be tragedies in particular circumstances by reasonable persons concerned with the welfare of the child. Depending on the circumstances, the use - or, a fortiori , the exploitation - of the sexual attributes of a female child may entail tragic consequences, yet the risk or even the likelihood of tragic consequences affords no justification for her sterilization. What difference does it make that the risk is occasioned by an intellectual disability? The answer to this question depends on the view taken of the proposition earlier set out in the Declaration on the Rights of Mentally Retarded Persons: they are entitled to the same rights as other humans to the maximum degree of feasibility. To accord in full measure the human dignity that is the due of every intellectually disabled girl, her right to retain her capacity to bear a child cannot be made contingent on her imposing no further burdens, causing no more anxiety or creating no further demands. If the law were to adopt a policy of permitting sterilization in order to avoid the imposition of burdens, the causing of anxiety and the creating of demands, the human rights which foster and protect human dignity in the powerless would lie in the gift of those who are empowered and the law would fail in its function of protecting the weak.
Where it is desirable to avoid the risk of pregnancy, the risk may be avoidable by means which involve no invasion of the girl's personal integrity. Those who are charged with responsibility for the care and control of an intellectually disabled girl (by which I mean a female child who is sexually mature) - whether parents, guardians or the staff of institutions - have a duty to ensure that the girl is not sexually exploited or abused. If her disability inclines her to sexual promiscuity, they have a duty to restrain her from exposing herself to exploitation. It is unacceptable that an authority be given for the girl's sterilization in order to lighten the burden of that duty, much less to allow for its neglect. In any event, though pregnancy be a possibility, sterilization, once performed, is a certainty. If a non-therapeutic sterilization could be justified at all, it could be justified only by the need to avoid a tragedy that is imminent and certain. Such a situation bespeaks a failure of care, and sterilization is not the remedy for the failure. Nor should it be forgotten that pregnancy and motherhood may have a significance for some intellectually disabled girls quite different from the significance attributed by other people. Though others may see her pregnancy and motherhood as a tragedy, she, in her world, may find in those events an enrichment of her life.
Because non-therapeutic purposes are, by definition, related to social values or values other than the maintenance and enhancement of the natural attributes and functions of the intellectually disabled female child, I am unable to postulate a case where it would be justifiable to authorize her sterilization. I am conscious that courts which have adopted the best interests approach have been accustomed to balance the risks of what may appear to be likely social tragedies against the physical invasion, incapacitation and mental and emotional impact of sterilization. In my respectful opinion, a balancing exercise is impossible to perform. On one side is the immediate and serious invasion of physical integrity with the resulting grave impairment of human dignity. On the other, there is a risk of what is adjudged to be a future tragedy involving dependence on others, inability to cope, social incompetence or some other matter apparently diminishing the quality of the child's life. The values on either side of the balance are not comparable. If there is to be a rule - as, in my view, there must be - the rule must give priority to the right to physical integrity and the human dignity it protects, even though such a rule imposes burdens on parents, guardians and those having the care of the intellectually disabled child who are entitled to the active support of the State which must bear the ultimate burden.
Such a rule, it may be said, is too idealistic and is out of touch with contemporary community standards. There is much force in that criticism but this is an area of the law in which it is necessary to guard against the tyranny which majority opinion may impose on a weak and voiceless minority. The history of intellectually disabled people contains a surfeit of examples of degrading treatment administered under laws which reflected the standards of the time - standards which were a reproach to the civilization then enjoyed. If equality under the law, human rights and the protection of minorities are more than the incantations of legal rhetoric, it is in this area of the law that they have real work to do.
I would hold that the power to authorize sterilization of an intellectually disabled child extends to therapeutic sterilizations but no further. That view is confirmed when we turn to the question: who can exercise this power?
Powers of Parents and Guardians
The parents of a child are his or her natural guardians and custodians. ) recognizes their status as guardians and custodians, subject to any order of a court, until the child attains the age of 18 years. Guardianship and custody impose responsibilities and confer powers sufficient to enable parents to discharge those responsibilities. Section 63E(1) and (2) defines the extent of those responsibilities and powers:
"(1) A person who is the guardian of a child under this Act has responsibility for the long-term welfare of the child and has, in relation to the child, all the powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian of a child, other than:
- (a)
- the right to have the daily care and control of the child; and
- (b)
- the right and responsibility to make decisions concerning the daily care and control of the child.
(2) A person who has or is granted custody of a child under this Act has:
- (a)
- the right to have the daily care and control of the child; and
- (b)
- the right and responsibility to make decisions concerning the daily care and control of the child."
The responsibilities and powers of parents extend to the physical, mental, moral, educational and general welfare of the child [F149] . They extend to every aspect of the child's life. Limits on parental authority are imposed by the operation of the general law, by statutory limitations or by the independence which children are entitled to assert, without extra-familial pressure, as they mature. Within these limits, the parents' responsibilities and powers may be exercised for what they see as the welfare of their children. Within those limits, the parents' authority is wide enough to permit them to authorize therapeutic medical treatment for a child, whether or not the child consents to the administration of that treatment. a fortiori , if the child is incompetent to give consent, whether by reason of age, illness, accident or intellectual disability, the parents have the responsibility and power to authorize the administration of therapeutic medical treatment, whether or not that treatment involves sterilization. Such a power is exercised without question when the treatment does not involve sterilization and there is no reason to distinguish treatment that does involve sterilization when the sterilization is merely a necessary incident of therapy directed to some other physical or mental condition. It cannot be right to deny therapeutic treatment to a child unless the parents first obtain the leave of a court [F150] . The power to authorize therapeutic medical treatment exercisable by parents who are guardians and custodians of a child is exercisable by duly appointed guardians or custodians according to the nature of the treatment and the urgency with which it needs to be administered. Ordinarily, the power to authorize the therapeutic sterilization of an intellectually disabled child would be reposed in the child's guardians. Although it may sometimes be difficult objectively to determine whether a sterilization proposed in a particular case is therapeutic, the power to authorize the performance of a therapeutic sterilization must rest with the parent or other guardian. But where there is a doubt about the therapeutic character of a proposed procedure, those who would be involved in the procedure may be at risk if they act merely upon a purported authorization given by the parent or other guardian.
A parent or guardian has no authority to authorize sterilization of a child for non-therapeutic purposes or sterilization by a procedure which is not appropriate and proportionate for the therapeutic purpose for which it is intended to be administered. As the Indiana Court of Appeals held [F151] :
"the common law does not invest parents with such power to authorize sterilization for contraceptive purposes) over their children even though they sincerely believe the child's adulthood would benefit therefrom."
If the authority of parents or guardians to authorize sterilization is limited, it will be necessary in a doubtful case to obtain an affirmative declaration from the court in order to safeguard those involved in the proposed procedure from the consequences of proceeding without lawful authority. And, of course, the parents or guardians may wish to obtain the court's assurance that they are acting lawfully in giving their authority to the proposed procedure. The parents sought the court's approval in Re X and they seek it in this case. In Re X, Hillyer J. made an order actually consenting to the performance of an hysterectomy in exercise of the parens patriae jurisdiction. I would respectfully agree that the performance of the operation was justified on the view his Honour formed (he described the proposed procedure as "an amenorrhoea operation - for the purpose of preventing menstruation ... not ... for the purpose of sterilization" [F152] , but I would find the power to authorize the performance of such an operation to reside in the child's parents, not in the court, though the court's declaratory jurisdiction is available to be invoked.
Although a power to authorize a therapeutic sterilization resides in parents or other guardians, its exercise is subject to supervision by the court in exercise of its parens patriae jurisdiction. That jurisdiction was originally vested by the royal prerogative in the English Court of Chancery [F153] and is vested in courts whose jurisdiction is defined by reference to the jurisdiction of that Court [F154] as it stood before the warrant delegating the prerogative power to the Lord Chancellor was revoked [F155] . The nature of the jurisdiction was stated by Lord Esher M.R. in R. v. Gyngall [F156] :
"The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child."
The parens patriae jurisdiction has become essentially protective [F157] in nature and protective orders may be made either by the machinery of wardship [F158] or by ad hoc orders which leave the guardianship and custody of the child otherwise unaffected [F159] . The court is thus vested with a jurisdiction to supervise parents and other guardians and to protect the welfare of children [F160] .
Although the jurisdiction is extremely broad, it is exercised cautiously in the manner stated by Fitzgibbon L.J. in In re O'Hara [F161] and adopted by the House of Lords in J v. C [F162] :
"In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded."
There must be some clear justification for a court's intervention to set aside the primary parental responsibility for attending to the welfare of the child [F163] . Of course, in a case where the welfare of a child involves consideration of a parent's function of providing religious or moral upbringing, minds may differ as to the desirability of court intervention. For example, I would respectfully doubt whether the primacy of parental responsibility was sufficiently recognized in the leading English case of Gillick v. West Norfolk AHA [F164] in relation to so much of the declaration sought by Mrs Gillick as related to the welfare of her own children and her ability to discharge her duties as parent and custodian of those children [F165] . But judicial opinion has a much narrower role when the welfare of a child turns on the therapeutic character of a proposed sterilization. The supervisory jurisdiction in questions of sterilization of intellectually disabled children requires consideration only of purpose and proportionality. If parents or guardians have authorized the sterilization of a child but the court is of opinion that the proposed sterilization would not be therapeutic and on that account would violate the child's right to personal integrity, the court may prohibit by injunction the carrying out of the sterilization [F166] . Conversely, if a therapeutic sterilization is required but the child's parents or guardians have failed or refused to authorize the procedure, the court may authorize sterilization by an appropriate and proportionate procedure [F167] .
The jurisdiction of the court to grant an authority for sterilization
If there be a power to authorize the non-therapeutic sterilization of an intellectually disabled child, further questions arise for consideration. Clearly there are dangers in entrusting such a power to parents or guardians, as Nicholson CJ recognized in Re Jane [F168] :
"The consequences of a finding that the court's consent is unnecessary are far reaching both for parents and for children. For example, such a principle might be used to justify parental consent to the surgical removal of a girl's clitoris for religious or quasi-cultural reasons, or the sterilisation of a perfectly healthy girl for misguided, albeit sincere, reasons. Other possibilities might include parental consent to the donation of healthy organs such as a kidney from one sibling to another."
Nevertheless, some judges have held that parents or guardians do have a power to authorize non-therapeutic sterilization of an intellectually disabled child [F169] Other judges have held [F170] that parents and guardians have no such power but that the court has the power and that an application to the court is required to obtain its exercise. To differentiate between a power to authorize sterilization that is vested in parents or guardians and a power to authorize sterilization that is vested in a court, there must be some ground of distinction. If there be only a single power to authorize sterilization when it is in the child's best interests, then of necessity that power must be vested in parents or guardians for the circumstances which will compel its exercise cannot always wait upon an application to and order by a court. If there be distinct powers, however, one power can be vested in parents or guardians, the other in the court. But what is the ground of distinction? Nicholson CJ, recognizing the problem in Re Jane [F171] , drew a distinction between therapeutic and non-therapeutic sterilizations and held that parental power did not extend to authorizing non-therapeutic sterilizations. That view is consistent with the decision in AL v. GRH. Sheer prudence powerfully supports this view, as Mason CJ, Dawson, Toohey and Gaudron JJ. have noted. But, if parents and guardians have no such power, how does the court acquire the power? Leaving aside for the moment the possibility of statutory investiture of a specific jurisdiction in that behalf, the only legal explanation advanced is that a court, in exercising its parens patriae jurisdiction, enjoys a wider power than parents or guardians possess in respect of the personal integrity of their children. That proposition, in my respectful view, is erroneous in law and disturbing in its social implications.
Sachs L.J. in Hewer v. Bryant [F172] offered as an explanation of some 19th century cases the theory that the court, in the exercise of the parens patriae jurisdiction, had greater physical control over a child than the child's father possessed. This dictum did not persuade Staughton L.J. in In re R (A Minor) (Wardship: Consent to Treatment) [F173] who reserved his opinion as to whether the parens patriae jurisdiction vested more than parental powers. In fact there appear to be no instances (save in the class of case now under consideration) where the court has held that it has jurisdiction to authorize interference with the physical integrity of a child which could not have been authorized by parents or guardians. There are some instances where a court exercising its wardship jurisdiction has accepted that it has a jurisdiction to make orders against strangers to protect the welfare of a ward although a parent or guardian could not have taken the step ordered [F174] , but those cases do not suggest that the court has any powers wider than the powers of parents or guardians to authorize interference with the personal integrity of children. This consideration is not conclusive, but it demonstrates that the power to authorize non-therapeutic sterilization of an intellectually disabled child is a novel power which some courts have, by their own decision, assumed to themselves [F175] . It is not only the assumption of a novel power which is significant but the assertion that it is assumed in exercise of the wardship or parens patriae jurisdiction. If that be so, the power is exercisable over the objection of parents or guardians and simply on the footing that the court deems its exercise to be in the "best interests" of the child. Of course the parents or guardians will be heard on any application to the court, but the idiosyncratic views of the judge are given, by this theory, overwhelming effect.
In the United States, the assumption by courts of a power to authorize sterilization of intellectually disabled people has been accompanied by judicial prescription of protective procedures and criteria for determining whether sterilization is in the patient's best interests: see In re Grady [F176] and Matter of Guardianship of Hayes [F177] . Though the desirability of protective procedures and criteria is manifest, their prescription gave the Courts' decisions a legislative character in the eyes of Rosselini J. who, speaking for the minority in Matter of Guardianship of Hayes, expressed his concern that the courts not become "an imperial judiciary" [F178] . I share his concern. The hypothesis that a court is empowered to authorize the non-therapeutic sterilization of intellectually disabled children is asserted in order to satisfy what the court perceives to be a lacuna in the powers which ought to be available to satisfy the exigencies of the situation of some disabled children. But the court is an instrument of State power, and the powers of the State to authorize interference with the personal integrity of any of its subjects otherwise than for therapeutic purposes is not self-evident. If such a power can be exercised to secure what the court may deem to be the welfare of an intellectually disabled child, may not a like power be exercised to secure what the court may deem to be the welfare of any child? It is a power which would be exercised not by an anxious and anguishing parent or guardian who can be called to account, but by a judge to whom the case is assigned in a court's list and who, having exercised his or her discretion, is discharged from all responsibility for the consequences. The case of Stump v. Sparkman [F179] , which left the sterilized woman and her husband without remedy, despite a demonstrably erroneous exercise of judicial power to authorize her sterilization, is a distressing reminder that courts, for all their independence and wisdom, are not appropriate repositories of so awesome a power.
Moreover, the assumption of a power to authorize non-therapeutic sterilizations without legislative authority is tantamount to the assumption of a power to dispense from compliance with the criminal laws which otherwise protect personal integrity. Justification by court order for what is otherwise an offence is neither an orthodox doctrine of the common law nor consistent with the proper function of a court. Though some statutes create offences exempting instances in which a court is satisfied that particular circumstances exist, the proposition that a court can assume a power to dispense from the criminal laws which protect personal integrity when the judge believes the dispensation is for the welfare of a child is truly judicial imperialism. If that proposition were valid, the laws which presently bear on organ and tissue donations, medical experimentation, abortion or other surgical procedures could be overridden if an application were made to a judge vested with the parens patriae jurisdiction who took the view that the application of the law in the particular circumstances of the case would not be in the child's best interests. It is one thing for a court to exercise the power possessed by parents and guardians to authorize surgical procedures on a child and for the criminal law to accept that authorization, as it accepts an authorization by the parents or guardians, to be the equivalent of consent to what would otherwise be an unlawful application of force. It is another thing for a court to exercise an exclusively curial power to authorize a surgical procedure and to require that authorization to be treated both as an effective consent and as conclusively determining the lawfulness of the procedure. In the former case, the criminal law is simply construed to take account of the parental power which has always been recognized; in the latter case, protection which the criminal law has been fashioned to provide is undone by the exercise of a novel power, created by declaration of the instrument of government claiming to exercise it.
However, in the Northern Territory, s 26(1)(d) of the Code furnishes a legislative exception to criminal liability which can be filled by any valid authority. Even if it were right to hold that a Court in the Northern Territory could validly declare that its authority was sufficient to satisfy s 26(1)(d), the same view could not be taken by courts in States and Territories where statute or the common law does not provide that court authorization is a justification or excuse.
For these reasons, I am unable to agree that either parents or guardians on the one hand or courts on the other possess any power under the general law to authorize the non-therapeutic sterilization of intellectually disabled children. It remains to consider whether the Family Law Act purports to confer such a power.
Jurisdiction is conferred on the Family Court by Family Law Act "in relation to matters arising under this Part", that is, under Pt VII - Children. Part VII omits to prescribe the matters that may arise in relation to which proceedings may be instituted. However, s 64(1) gives the Court directions as to the conduct of "proceedings with respect to the custody, guardianship or welfare of, or access to, a child". It is probably necessary for courts to construe this unsatisfactory drafting as conferring on the Family Court jurisdiction in matters where "the custody, guardianship or welfare of, or access to, a child" is in issue, for otherwise the extensive provisions of Pt VII would be nullified. But the jurisdiction with respect to welfare can hardly be construed as authorizing the Family Court to make whatever order a judge may deem to be for the welfare of a child, irrespective of the general law or the rights of other people. The "welfare" jurisdiction of the Family Court does not permit the making of orders which exempt the child from compliance with laws that bind him or her or which remove the protection which laws confer on the child. In particular, the terms in which 64(1) are drawn do not suggest that the Court has been invested with a power to authorize an invasion of the personal integrity of a child greater than the power possessed by the child's custodians or guardians. Rather the reference to "welfare" in the context of custody, guardianship and access suggests that the jurisdiction is to determine disputes in which a decision (or a failure to make a decision) as to the welfare of a child by the custodian or guardian or person having access is challenged by another and the jurisdiction is invoked to hear and determine that dispute. As the "welfare" jurisdiction of the Family Court does not extend to wardship, it does not correspond with the parens patriae jurisdiction of which the wardship jurisdiction forms an important part.
Although that may be instituted under this Part shall not ... be instituted otherwise than under this Part", that provision does not purport to remove the parens patriae jurisdiction from the courts in which it is vested. To remove the parens patriae jurisdiction from the courts of equity, a statute must do so "expressly or by necessary, indeed inescapable, implication" [F180] . The courts of equity retain a residual parens patriae jurisdiction [F181] , though its exercise must conform to the provisions of the Family Law Act which deal with guardianship and custody [F182] . However, the equitable jurisdiction of the Supreme Court of the Northern Territory is cross-vested in the Family Court [F183] and the equitable jurisdiction of the Supreme Court of the Northern Territory is, by operation of the Supreme Court Act 1979 (NT), s 14(1)(b), the same general equitable jurisdiction as that vested in the Supreme Court of South Australia [F184] . That jurisdiction includes the parens patriae jurisdiction, but it does not suffice to support a power in the Family Court to authorize the non-therapeutic sterilization of intellectually disabled children.
In my opinion, there are other grounds for rejecting the notion that such a power is supported by the "welfare" jurisdiction conferred by Part VII of the Family Law Act. If a Court were to authorize a surgical procedure to which the parents or guardians are incapable of consenting and which is otherwise prohibited by the criminal law of a State, there would be a conflict between the State law and the Court's order. In exercising their jurisdiction, Federal Courts, no less than State Courts, are bound to apply the laws of the respective States subject, of course, to the Constitution and to any valid law of the Commonwealth with which the State law is inconsistent [F185] . Unless the context otherwise requires, a provision in a law of the Commonwealth investing a jurisdiction in a court is not construed as empowering the court to disregard the laws of the State in exercising the invested jurisdiction. If the Commonwealth law purports to override the State law, the Commonwealth law must itself find Constitutional support. If valid, the State law is overridden by operation of the Constitution, engaged by the enactment of the Commonwealth law rather than by the making of an order by the court. Orders made in exercise of invested federal jurisdiction are not themselves "laws of the Commonwealth" which are capable of engaging the operation of s 109. Indeed, it is difficult to conceive of an order creating an inconsistency with a State law that could be made by a court in exercise of a jurisdiction to hear and determine a "matter" within the meaning of that term in the Constitution. An exercise of judicial power, unlike an award of the Industrial Relations Commission, has no legislative effect.
Apart from certain well-known and traditional exceptions to which Dixon CJ and McTiernan J. referred in Reg. v. Davison [F186] , jurisdiction in "matters" is exercised to hear and determine disputes as to legal rights and obligations. A novel power to authorize a doctor to remove the organs of a child, exercisable on the application of any interested person according to the repository's opinion as to the child's best interests [F187] , does not bear the character of a judicial power which might be exercised under a jurisdiction to hear and determine a "matter". Unless such a power were a recognized incident of the parens patriae jurisdiction so that it formed part of the well-known and traditional exceptions - and clearly it is not - a law of the Commonwealth could not commit the exercise of such a power to a court. However, I do not construe Pt VII of the Family Law Act as purporting to do so. In my opinion, neither the parens patriae jurisdiction nor the "welfare" jurisdiction of the Family Court confers on that Court a power to authorize any invasion of a child's personal integrity which could not be authorized by its parents or guardians. It follows that the Family Law Act does not, in my view, confer power to authorize the non-therapeutic sterilization of Marion. No question arises as to the jurisdiction which the Supreme Court would have if Marion were a ward of that Court nor as to the jurisdiction of the Family Court if, by cross-vesting, that Court was vested with wardship jurisdiction.
The Family Court may, however, exercise under the cross-vesting legislation the equitable jurisdiction to make a declaration as to whether Marion's sterilization would be justified as therapeutic and, accordingly, as to whether an authorization given by her parents for her sterilization would or would not be valid.
I would therefore answer the questions in the case stated by Nicholson CJ as follows:
Q. 1. Can the Applicants as joint guardians of the child (Marion) lawfully authorise the carrying out in the Northern Territory, of a sterilisation procedure upon the said child without an order of a Court?
A. 1. Yes, but only if the procedure is therapeutic.
Q. 2. If no to question 1, does the Family Court of Australia have jurisdiction:
- (a)
- to authorise the carrying out of such a procedure; or
- (b)
- to enlarge the powers, rights or duties of the Applicants as guardians of the said child to enable them to lawfully authorise the carrying out of such a procedure; or
- (c)
- to approve the consent of the Applicants, as guardians of the said child, to the proposed procedure to make the procedure lawful?
A. 2. The Family Court has no jurisdiction to take any of the steps referred to which the applicants could not authorize in the absence of that step.
Q. 3. Which (if any) of the steps referred to in (a), (b) or (c) of question 2 is required by law?
A. 3. None, but the Family Court may make a declaration as to the lawfulness of a proposed procedure of sterilization.