In this case, the Court had to grapple with some interesting issues concerning how courts should deal with the evolution of medical technology and whether the court has the power to subject someone to genetic testing against their will.

In this matter, Cameron Wells (the Plaintiff) brought an action against the Hunter New England Local Health District (the Defendant), claiming that their actions at the time of his birth led to his disabilities. Due to Mr Wells' disabilities, the action against the Health District was brought by his mother and “tutor”, Tanya McGuffog. This particular case was not heard to determine whether Mr Wells’ claim for damages would be successful. It was focused on the issue of genetic testing which was proposed to be used as evidence in the substantive action.

The Defendant claimed that its medical staff did not breach its duty of care at the time of the Plaintiff’s birth, and that his intellectual disabilities were most likely genetic in origin. In order to prove this, the Defendant asked the Court to order Mr Wells and Ms McGuffog to submit to a form of genetic testing. Mr Wells had already undergone some genetic testing by a Dr Freckmann and the report found that there was no sign of a genetic disability and that:

"Further testing had a “low probability of yielding a definitive molecular genetic diagnosis".

Before assessing whether further genetic testing should be conducted, the Court had to first decide whether it had the power to force the Plaintiff and his mother to submit to testing. The Court found that the law allowed it to order genetic testing to be conducted on the parties, as long as it was relevant to the case and that the test called for had the capacity to provide useful information to the Court. The Court also said that it should be “alive” to the place of genetic testing in society and be aware of its possible uses.

As a result, the Court ruled that it had the power to make Mr Wells undertake a genetic test, but this power did not inherently extend to his mother, Ms McGuffog. Whilst she acted as his tutor in the proceedings, this did not make her a party to the case, and thus the Court had no legal authority to make her submit to genetic testing. The Defendant accepted that there was no legal authority to support Mr Wells’ mother being forced to undertake genetic testing, but argued that as she was the mother of the Plaintiff, the results could be useful nonetheless.

Having established that the Court had the power to order the test for Mr Wells, the issue then turned to whether the Court should order the test be done, that is, whether it was justified in the particular circumstances. The Defendant submitted to the Court that this matter was already very complex and there had already been over 100 expert reports prepared since the Plaintiff’s birth in 1996. As such, the Defendant believed that in such a complex case, innovative genetic testing had its place and would prove to be beneficial.

The Defendant also argued that the previous genetic test, conducted by Dr Freckmann, was not exhaustive. The doctor herself stated that the genetic test the Defendant was proposing, "Next Generation Sequencing", had a better chance of identifying the cause of Mr Well’s intellectual disability. This submission was supported by Associate Professor Fahey who said that this form of genetic testing:

“examines DNA at a much higher revolution than was previously possible.”

Finally, the Defendant stated that there was no evidence that Mr Wells or his mother had any particular difficulties in taking blood, and that if the Plaintiff was worried about the publication or release of the results from the potential test, the Court could make an order restricting the publication of this information.

Arguing against the testing, the Plaintiff argued that what the Defendant was asking for was too broad and without a defined purpose. It was argued that there was not enough evidence that the genetic testing would be able to shed more light on the matter and that the Defendant’s arguments were all speculative in nature.

Mr Wells also argued that Dr Freckmann’s report stated that further testing would not be likely to produce a different result. The Plaintiff also submitted that the amount of money he was seeking from the Defendant should not affect the level of evidence needed for the proposed test and that this case was not as complex as the Defendant had suggested.

In determining whether the test should be ordered, the Court stated that the test only needed to have the capacity to shed light on the issue, it did not need to be probable or likely to do so. The Court was of the view that Dr Freckmann’s report was not exhaustive or conclusive and that the amount of money being sought by Mr Wells was relevant to the Court’s decision. That is, the Defendant was entitled to take reasonable steps to defend itself against the plaintiff's allegations, and the testing could be a reasonable way to defend itself.

The Court also found that the Plaintiff failed to take into account the developing scientific technology of genetic testing and the fact that different tests can produce better and more detailed results. The Court stated that it should be open to using modern technology to assist in making its decisions and it rejected Mr Wells’ claim that the Defendant’s argument was merely speculative and a “fishing expedition”.

Despite all of the above, the Court still found that the testing proposed by the Defendant was too broad. The Court ordered Mr Wells to undertake genetic testing, but required the Defendant to amend its request to provide greater particularity. This case is an example of how traditional institutions, such as the courts, are adapting to utilise modern technology when deciding complex cases.