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Parens patriae

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Re Natalie [2012] NSWSC 1109. White J.

21 This application is brought in the Crown's parens patriae jurisdiction. That jurisdiction is exercisable, notwithstanding that Natalie is not a ward of the court (see Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 at 280 and Re Paul [2008] NSWSC 960 at [5]).

 22 It is within the parental responsibility of the second defendant for her to decide whether or not, in the circumstances that pertain in the present case, consent to resuscitative procedures should be given or withheld (see Re Baby D (No 2) [2011] FamCA 176; (2011) 45 FamLR 313 at [224], [225], and [227]-[229]).


27 The case is similar to that of Re J (a minor) [1993] All ER 930. There, Lord Donaldson MR quoted with agreement a passage from a judgment of McKenzie J in Re Superintendent of Family and Child Service v Dawson (1983) 145 DLR 3 d. 610 at 620-621:

"... the Court must decide what its ward would choose, if he were in a position to make a sound judgment ... [i]t is not appropriate for an external decision maker to apply his standards of what constitutes a liveable life and exercise the right to impose death (sic) if that standard is not met in his estimation. The decision can only be made in the context of the disabled person viewing the worthwhileness or otherwise of his life in its own context as a disabled person-and in that context he would not compare his life with that of a person enjoying normal advantages." 

28 Lord Donaldson pointed out that what is in issue in these cases is not a right to impose death, but a right to choose a course of action which will fail to avert death (at 936). His Lordship stated (at 938): 

"... even very severely handicapped people find a quality of life rewarding which to the unhandicapped may seem manifestly intolerable. People have an amazing adaptability but in the end there will be cases in which the answer must be that it is not in the interests of the child to subject it to treatment which will cause increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child's, and mankind's desire to survive."

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