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In the recent decision of Director Clinical Services, Child & Adolescent Health Services & Kiszko & Anor [2016] FCWA 19, a 6 year old child has been made to undergo chemotherapy despite being against the wishes of the parents’.
The child (which will be referred to as X) was diagnosed with having a brain tumour and underwent surgery in December 2015 to have the tumour removed with the parents’ consent.
On 18 March 2016, the Family Court of Western Australia heard an application filed by Princess Margaret Hospital for an order that X be required to undergo chemotherapy and radiotherapy against the wishes of the parents.
The hearing was listed urgently due to concerns that the parents may remove the child from the country for other treatment and was preceded by a Watch List order being made on an ex parts basis (without the parents being present).
One of the mains concerns for the parents was the impact of the procedures on X. Although not married, the parents of X had parental responsibility, being “all the duties, powers, responsibility and authority, which, by law, parents have in relation to children”. It was also accepted that it would be within the power of the parents to give consent to the medical treatment for X.
The Court at [71] acknowledged that there are some procedures which are beyond even the capacity of parents to consent to, at least under the present state of the law as laid down by the High Court however found that this case did not fall within that category, and thus it was necessary for the hospital to make an application, because the parents’ consent to the medical treatment has not been forthcoming.
[72] As the High Court effectively said in Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”), implicit in the power of parents to consent to medical treatment for a child incapable of giving consent, is recognition of the fact that parents will act in a way that is best for the welfare of the child. Thus, the overriding criterion of the child’s best interests is itself a limit on parental power.
[73] Put another way, parental power is not unlimited. It is to be exercised in the best interests of the child. In this case, there is a dispute as to what is in the best interests of the child, hence the necessity for the court to make the decision where others involved cannot.
The Court (at[76]) relied on the following ‘critical statement’ of Pullin J in Minister for Health v AS [2004] WASC 28:
‘Where faced with the stark reality that the child will die if lifesaving treatment is not performed, which has a good prospect of a long-term cure, it is beyond doubt that it is in child’s best interests to receive that treatment...'
The Court held that there had been fairly consistent advice that if the combined radiotherapy and chemotherapy regime is attempted, studies indicate that there is a 50 to 60 per cent chance of survival after 5 years.
[78] The evidence makes clear, beyond all doubt, that X will die within a few months if measures are not taken to prevent his death. The evidence indicates that there is about a 30 per cent prospect of survival after five years if he undertakes the chemotherapy that could commence tomorrow.
