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Parens Patriae – The Powers of the Supreme Court

The decision of Re Ryder [2020] NSWSC895 is an illustration of the Supreme Court Parens Patriae jurisdiction.

Parens patriae, (Latin for ‘parent of the state’ or ‘parent of the nation’) is a doctrine that grants courts and other arms of government the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf.

Ryder (a pseudonym) was a 2 year and 8 month old boy who had endured medical difficulties in his short life.  The application to the Court was in respect of chemotherapy treatment.  Ryder’s parents did not wish to consent to six cycles of chemotherapy which were unanimously recommended by Ryder’s treating doctor and other specialists in the field.

The Minister for Health and the treating hospital filed an urgent application with the Supreme Court seeking to invoke the Parens Patriae jurisdiction for orders which would permit the proposed treatment to be administered over his parents’ objection.

Ryder’s parents did not wish to consent because they were motivated by their concern for Ryder’s quality of life.

The Parens Patriae jurisdiction is an extraordinary jurisdiction which has only one criteria – what is in the best interests of the child.

In this matter the Court considered Ryder’s medical history together with the recommendations from his treating doctors and specialists.  The opinion was that there was significant risk to Ryder if chemotherapy was not administered including that his cure rate was about 60% without treatment and 90% with treatment.  The Court found on the basis of the doctor’s evidence that it was necessary for Ryder to undergo the proposed treatment as being in his best interests.  The role of the Court is to consider the evidence objectively and to apply only the test of what is in the best interests of the child.

In the judgment the Court expressed deep sympathy and understanding for the emotional turmoil of the parents but decided that on the evidence the issue was straight forward.  Whilst the proposed treatment would be uncomfortable and had side effects, if he did not undergo treatment there was a 40% prospect of a distant recurrence of the cancer and having to undergo far more toxic chemotherapy later with far lower prospects of a successful outcome.

The Court made the orders sought by the Minister for Health and the hospital.

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