Director Clinical Services, Child and Adolescent Health Services and Kiszko and Anor

[2016] FCWA 19

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: DIRECTOR CLINICAL SERVICES, CHILD & ADOLESCENT HEALTH SERVICES and KISZKO & ANOR [2016] FCWA 19

CORAM: THACKRAY CJ

HEARD: 24 MARCH 2016

DELIVERED : 24 MARCH 2016

FILE NO/S: PTW 1388 of 2016

BETWEEN: DIRECTOR CLINICAL SERVICES, CHILD & ADOLESCENT HEALTH SERVICES

Applicant

AND

ANGELA JADE KISZKO
First Respondent

ADRIAN COLIN STRACHAN
Second Respondent

Catchwords:

CHILDREN – Medical treatment – Medical authorities from Princess Margaret Hospital seek orders for the child to receive chemotherapy and radiotherapy – The child’s parents are opposed to the treatment and seek an adjournment – The court has jurisdiction to make the order under s 162 of the Family Court Act 1997 (WA) – The child will die without receiving treatment, but there is a good prospect of a long-term cure if the treatment proceeds – It is in the child’s best interests for the proposed chemotherapy treatment to commence as soon as possible – Interim order made for the treatment to commence and matter adjourned – Parents given an opportunity to provide further expert evidence before radiotherapy commences.

Legislation:

Family Court Act 1997 (WA), s 36, s 162, s 185

Category: Reportable

Representation:

Counsel:

Applicant: Ms Conley

First Respondent : Ms Wenn

Second Respondent : Self Represented Litigant

Solicitors:

Applicant: State Solicitor's Office

First Respondent : Wenn Barristers & Solicitors

Second Respondent : Self Represented Litigant

Case(s) referred to in judgment(s):

Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

Minister for Health v AS (2004) 29 WAR 517

1I am going to give my reasons this afternoon rather than reserving my decision, which I would ordinarily do because the issues are so difficult and important. But the decision has to be made today.

2I want to make clear at the beginning what my decision is, rather than putting the parents through the agony of listening to me saying quite a lot of things about legal matters and the factual matters that will be distressing for them.

3I am going to make the orders that have been sought by the hospital, but I will not order the treatment to commence until after Oshin’s birthday party this Saturday. The concession about delaying the party that has been made by the hospital is appropriate and I would have made that order even without the concession.

4The proceedings commenced very recently, on 18 March 2016, with the filing of an application by the Child and Adolescent Health Service. The respondents to the application are Angela Kiszko and Adrian Strachan, who are the mother and father of the child involved.

5The matter was listed on a very urgent basis because of concerns held by doctors at Princess Margaret Hospital that the little boy who is the subject of these proceedings, Oshin, might be removed from Australia. Given the tragedy that occurred in a previous case, to which counsel has referred, the concern about Oshin being removed was properly brought to the court’s attention. The Magistrate who first heard the matter, without notice to the parents, considered that it was appropriate to make a holding order that Oshin not be removed from Australia pending further order. As a result, his name was put on the airport Watch List.

6Various other orders were made, including for the delivery up of passports and for the parents not to change their address. But these were not the substantive matters that were causing concern to the hospital. The issue that is of major concern is the one argued today, relating to the minute of proposed orders that was handed up on behalf of the hospital. The minute seeks permission from the court to allow Oshin to undergo a variety of treatments ‑ ‑ ‑

KISZKO, MS: Your Honour, I don’t wish (indistinct)

HIS HONOUR: You don’t have to stay. If you would prefer to go – or you can stay if you like. Okay.

7…for Oshin to undergo a variety of treatments including, significantly, radiotherapy and chemotherapy. [The mother then left the courtroom, slamming the door, but returned later.] Because of the way that the matter has come before the court, it is unnecessary for me to consider the radiotherapy option now, and I will explain why that is so shortly.

8When the Magistrate dealt with the matter the other day, it proceeded without notice to the parents, so the case was adjourned to an early return date to give them an opportunity to have the matter heard again as soon as possible.

9Earlier this week, the hospital requested that the hearing date be advanced because of recent developments. The matter was relisted today, it being noted that we are about to start the Easter long weekend. The parents were able to secure legal representation in the last 24 hours, having only been served on Tuesday. They have therefore had no effective opportunity in which to put their case fully to the court. But in the short time that they have had, they have been able to obtain legal representation and Ms Wenn has been able today to make solid submissions on their behalf.

10The mother has also had time in which to prepare, no doubt in a great hurry, a heartfelt statement in relation to matters that are of considerable significance to the decision. In particular, the statement refers to the impact on Oshin of the treatment that he has had to date, and the concerns that the mother and father have in relation to the impact of future treatment.

11Now, I do not in any way suggest that the matter would not have been more adequately prepared if more time had been given, as no doubt it would have been presented more adequately. Accordingly, I heard at the commencement of today’s proceedings an application by Ms Wenn for an adjournment of the matter, which was an entirely appropriate application to make in these unfortunate circumstances.

12Amongst reasons advanced for the adjournment was Ms Wenn’s desire to brief senior counsel. Nothing that was put before me indicated that this was necessarily a viable prospect, or who the senior counsel might be, or when senior counsel might be available to argue this matter. Although in one respect the legal issues involved appear complex, and although this matter is the first case of this nature to come before this court, I consider that the law is beyond doubt, and that it has been accurately stated by counsel for PMH in her submissions. The involvement of senior counsel would not, in my view, assist me in dealing with the legal issues. Otherwise, the decision I am required to make involves the exercise of a wide discretion conferred on the court. Ms Wenn has eloquently and forcefully made submissions which I think would simply be echoed had senior counsel been engaged.

13One of the other matters to which Ms Wenn referred in support of the adjournment was the desire to adduce expert evidence to meet the evidence presented on behalf of the hospital. There can be no doubt that the evidence provided by the doctors from the hospital is expert evidence. The qualifications of the doctors to give the evidence they have seem beyond any doubt. The mother herself accepted Dr G (the Head of Department) as an expert and did not take issue with his qualifications.

14The mother has a less favourable opinion of Dr W (Oshin’s treating doctor), but it appears this does not relate to any concern about his expertise, but instead to disagreements that have occurred between them over the last few months, during which the doctor has been advocating for a position that the mother is not prepared to accept.

15The submissions about the expert evidence the parents wanted to obtain were very vague. Mention was made of some attempt to enlist the assistance of a doctor from Sydney to provide an alternative view; however, the evidence from Dr G persuades me that the Sydney doctor would not be able to provide evidence that would be likely to assist, given that his area of expertise is as a surgeon and Oshin has already had his surgery. The question I am now asked to determine is what should be the ongoing treatment regime, if any, for Oshin.

16Apart from specific mention of the Sydney doctor, there was otherwise only very vague reference to a support network (unqualified, but no doubt well intentioned), which is still trying to obtain some other evidence, notwithstanding Oshin has now been critically ill since December 2015. I am not persuaded that giving further time to look for unspecified expert evidence justifies the further delay in a decision about what is in Oshin’s best interests.

17The other matters to which counsel referred in her application for an adjournment were not such as to persuade me that it was appropriate to delay the matter any further.

18In refusing the application for an adjournment, I have proceeded on the basis that the decision I make today will not be the one that determines the full scope of Oshin’s future medical treatment. The decision I make today is what the treatment schedule might look like, and more particularly, when it will start.

19If the parents are in a position to obtain expert evidence that points in a different direction as to what would be best for Oshin, then it will be open to them to return to the court with that evidence and, for example, to ask the court to put a halt to the treatment that I propose to authorise this afternoon and to prevent the commencement of the radiotherapy treatment (which, for reasons I will explain in a moment, is not available at present).

20Accordingly, in refusing the adjournment, I intend to proceed on the basis of making the most discrete, shortest-term orders that I consider appropriate, leaving open the opportunity for the parents to return to the court at their convenience with any better evidence than they have been able to obtain.

21I now turn to the substantive dispute. The chronology of the matter, as I understand it from having had the opportunity only this morning to read the paperwork provided, is that Oshin, who will turn six on 1 April, became very unwell in November 2015. The parents acted in Oshin’s best interests in taking him to the doctor on more than one occasion and were then referred to PMH for further investigation. The quality of life that Oshin was experiencing at the time of his presentation to PMH was clearly far from good.

22He was a very sick little boy. Testing undertaken very promptly found that, most sadly, he had a relatively rare brain tumour. The parents were advised, and accepted the advice, that the tumour needed to be removed and it was removed on 3 December 2015. Thereafter, there was discussion between the parents and the hospital in relation to the best way forward for Oshin. As I understand what was said in the mother’s affidavit, they were understandably disturbed about Oshin’s reaction to the surgery.

23There were side effects, as one might well anticipate with such a serious procedure, and the parents were troubled about the impact and the time it was taking Oshin to respond. The evidence does indicate, however, that with the care he received at the hospital and the care he has no doubt subsequently been receiving from his family, he has made a good recovery from the surgery and many of the more troubling side effects of the surgery have now dissipated. But ‑ ‑ ‑

STRACHAN, MR: No, they haven’t. Sorry, judge. Your Honour, but they haven’t (indistinct)

HIS HONOUR: When I say dissipated, I don’t suggest that they have all gone away, but the evidence would suggest that they have reduced in magnitude.

STRACHAN, MR: I’m sorry. But I’m just feeling a bit uncomfortable because poor little Oshin has had no say in this.

HIS HONOUR: All right.

STRACHAN, MR: Nobody has asked me, who has spent 85 per cent of my time with him since the surgery, how he reacts when he goes to hospital.

HIS HONOUR: Right.

STRACHAN, MR: Have they told you that he has hysterical fits every time he (indistinct)

HIS HONOUR: Yes. I will ask you please not to interrupt any further.

STRACHAN, MR: I’m sorry. I’ve just had no say in this.

HIS HONOUR: That’s why I did ask earlier as to whether or not you wanted to represent yourself or you wanted to be represented by the lawyer.

STRACHAN, MR: Well, I didn’t understand that I had to be represented by myself to have a say in this.

HIS HONOUR: All right. Well, it’s ‑ ‑ ‑

STRACHAN, MR: I thought maybe I would have been offered to have a say.

HIS HONOUR: All right. Thank you. I have had the opportunity, as I say, of reading your partner’s affidavit and she has described quite graphically how badly she and you say that Oshin has reacted to his time in the hospital and the impact that it has had on him – and I do take that into account. But I must now ask that you not interrupt me any further. The hearing has been concluded and I’m giving my reasons. If there is a dispute about the decision that I make, there is a right of appeal available but I ‑ ‑ ‑

STRACHAN, MR: Can I just say one more thing, please.

HIS HONOUR: Yes. You can.

STRACHAN, MR: With the anaesthetists that were involved in his last MRI, was there anything on their reports that they – how they were quite disturbed at Oshin’s behaviour after his last wake up from the local – the general anaesthetic.

HIS HONOUR: I’ve read all of the material that I’ve been given.

STRACHAN, MR: No. I’m asking if you’ve had a report from the people who administered ‑ ‑ ‑

HIS HONOUR: I’ve heard from the doctor about the views that have been taken as a result of the last MRI and ‑ ‑ ‑

STRACHAN, MR: Yes. But I’m – I would like to know if you actually heard from the anaesthetists who witnessed the way it is for Oshin when he comes out of these general anaesthetics. His ‑ ‑ ‑

HIS HONOUR: I haven’t read anything to that effect. No.

STRACHAN, MR: Well, because they haven’t supplied it. This is ‑ ‑ ‑

HIS HONOUR: Thank you, I’m sorry. I am going to have to ask you to be quiet now. I will finish my decision and then you can speak with your counsel about the availability of an appeal.

24Returning to where I was: Differences of opinion arose between the parents and the hospital during Oshin’s recuperation, shall I say, from the major surgery. And the differences of opinion became such that it was considered appropriate to convene a meeting of the hospital Ethics Committee in order to, as I understand it, provide some direction as to the way forward. The parents and the doctors at that meeting had the opportunity to explain their respective positions.

25The position taken by the doctors largely, if not entirely, corresponds with the position that they are still taking, namely that a combination of chemotherapy and radiotherapy is the appropriate way forward, for reasons that I will explain. The parents had the opportunity to express their opinion at the meeting of the Ethics Committee in relation to their concerns about the proposed medical intervention.

26The mother explained her own situation of having had chronic back pain and her inability, because of her own health condition, to support Oshin’s weight, which was important to the care that he would need away from the hospital.

27The Ethics Committee was also informed of the fact that the father was on unpaid leave, and in the event that there was a significant impairment for Oshin over the six-month period of the treatment, then it may also be difficult for the father to provide the support at home that he might otherwise have done.

28The mother also set out her concerns arising out of her own life experience with close family who have suffered and died from cancer. Notwithstanding what has been said today about the parents’ intentions, at the time of the Ethics Committee hearing, the mother’s intention was to trial alternative therapies focussing on nutrition.

29It is also noted that the mother has given evidence of having some form of qualification in alternative therapies, saying she has a Diploma in Bodyworks and an Advanced Diploma in Diet and Nutrition, and that she has studied naturopathy. She also mentioned that, as a result of her belief in those forms of therapy, she was dealing with issues concerning Oshin’s diet and giving him some herbal therapies. When she was asked at the time of the Ethics Committee meeting how long she would like to try this alternative approach, the mother said that she had something like six to eight weeks in mind.

30The Ethics Committee was also assisted by the attendance of a friend of the family called Linda, who was described as having a very strong belief in natural therapies, and who was described in the report of the committee as being “intransigent” in her views in relation to this matter. The committee expressed some doubt whether or not Linda’s intransigent attitude would be of assistance to the family at the time. The Ethics Committee, in what I thought was a very careful and sensitive discussion of the topic, said that, from an ethical perspective, decisions need to be made in the boy’s best interests. They said:

To this extent, parental autonomy may be limited. The difficulty is that a child’s best interest is often not an absolute, but an assessment that will be heavily influenced by the beliefs and experience of any individual or body considering the issue. Another ethical principle is to consider such matters in terms of the burdens and benefits of any proposed line of treatment. Again, both burdens and benefits are perceptions that an adult must consider on behalf of a child.

31The committee was “a little divided” on the question of whether there should be active therapy, and it said “for some [and I take it that was for some members, noting here that the membership of the committee appears to be both medical and community-based] the burdens and benefits equation would clearly fall in favour of giving active therapy a chance”.

32Others on the committee felt that:

the burdens of treatment are such that more conservative management with palliative chemotherapy could be considered a valid and ethically supportable option. This lack of unanimity would, from an ethical perspective, suggest a cautious approach to the issue of seeking orders to compel treatment in the absence of parental consent.

33The committee went on to strongly encourage the doctors and the family to continue an open dialogue to work toward common ground, and they hoped that the prescribed medical therapies could be given in conjunction with natural remedies in which they said the mother may have faith.

34Now, it is important here to say that an Ethics Committee is but one part of a decision-making process and it is not determinative of the process. As I see it, it is there to give advice in relation to ethical issues.

35In any event, the hoped-for agreement between the parents and the hospital was not forthcoming and a further meeting of the Ethics Committee was convened on 8 March 2016, at which time it was noted that the family was now withholding consent for “standard therapy” and was actively using alternative supports. Again, at this second meeting of the committee, the parents had an opportunity to give their views about what was occurring, and I have been able to take those matters into account in reaching my decision today.

36The mother said that the family was feeling pressured by a “dismal prognosis”, and that they felt that the doctors were trying to frighten them into complying with treatment. The mother (and I gather she was speaking too for the father) considered that the treatment would not be in Oshin’s best interests, and said that they had moved away from their earlier position of wishing for a delay in a decision to a position of actively rejecting conventional therapy.

37The Ethics Committee noted that it had formed the view that neither the mother nor the father actually believed that alternative therapy would be curative, whereas Linda, the support person to whom I referred earlier, remained intransigent in her view that alternative therapy was likely to be curative. The committee report said that on this occasion there was unanimity by the Ethics Committee “in rejecting a proposition that standard oncological therapy could be replaced by alternative therapies”.

38The committee said that:

Such an approach is not considered a rational approach and is not supported by available scientific evidence. While consenting adults are free to choose such paths for themselves, it is ethically indefensible to impose such irrational beliefs on the lives of others and there are legal avenues that serve to protect children under these circumstances.

39In discussing whether it was reasonable to reject a curative therapy for a palliative approach, the committee said that it could “in particular circumstances support a view that the burdens and benefits equation might be in favour of a palliative approach to management, and this approach might be rational and ethically justifiable”.

40The committee went on to say that “it is certain that Oshin’s only chance of survival would be to embark on the standard treatment [proposed by the doctors] and that the vast majority of parents faced with the same agonising choice would opt for a curative approach”. The Ethics Committee recognised that it is both the doctors’ and the hospital’s duty to promote this, and “where the chances of survival are higher and the potentially long-term burdens less, then a palliative approach may not be ethically defensible”.

41The report said that although the committee was still divided, “some members of the committee could support the palliative approach to management on the basis of a rational and careful assessment of the burdens on Oshin”, but that an “ethically supportable palliative process would involve active symptom management (as opposed to passive non treatment), and would likely include some conventional therapy”.

42The report concludes by setting out the options available:

(1)No conventional therapy with reliance on alternative therapies. The committee was unanimous in rejecting the proposition that standard oncology therapy could be replaced by alternative therapies as preferred by the parents. This is not ethically supportable.

(2)The curative approach as recommended by the clinical team would give Oshin the only possibility of long-term survival. Although the significant burdens during and after treatment are recognised, this is clearly ethically supportable.

(3)A palliative approach could be ethically supported under the contention that the burden of the curative treatment on Oshin outweighed the benefits. Furthermore, if the palliative course was chosen, conventional agents to manage symptoms would be necessary, and it was not clear to the committee whether Angela and Colin would be willing to support that.

(4)The option of either party applying to the courts if no agreement could be reached was raised, and although never the preferred course, it is clearly an ethically supportable option for either the clinical team or the parents in these circumstances.

43I should have mentioned that in between those two meetings of the Ethics Committee, there was an MRI done on 16 February 2016, but there has now been a further MRI done on 17 March 2016. As a result of the observations made following that MRI, it has been noted by the medical team that the need for a treatment decision has become “time critical”. The disease has been found to have progressed in a linear rather than in an “explosive” fashion.

44The tumour in question usually proceeds in an explosive manner and the tumour progresses very quickly beyond the point of curative treatment. In this case, it is progressing in a linear manner, at a slightly slower rate than would otherwise have been expected. As a result, those doctors viewing the MRI are of the view that curative treatment rather than palliative treatment is appropriate.

45But it has been reported by the doctors that the tumour is now on the cusp of a massive and irreversible progression, suggesting that it is critical that the boy commences treatment with curative intent urgently, and that each day which passes may make the difference between whether curative or palliative treatment is considered appropriate.

46The recommendation made on the basis of the latest MRI, the doctors’ experience, and the relevant medical literature is that the most appropriate treatment for the boy is chemotherapy and radiotherapy with curative intent.

47Now, I pause there to note that the parents have been critical of what they say has been an inconsistency of advice given to them in relation to the prognosis for Oshin in the event that the medical interventions are undertaken. This is a very complex subject. The parents must be living under intense pressure, and hearing all of this advice in relation to quite difficult scientific matters would be difficult for anyone to take in at the best of times. Although the issue of inconsistency of advice has not yet been properly explored, I am not persuaded at the moment that there has, in fact, been any inconsistency of advice.

48Certainly, the written information about the prognosis, both in the reports of the Ethics Committee and in the other written material that has been provided to me, would suggest that there has 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 five years. This is the period at which it might be considered that there had been a “cure”. If chemotherapy only is attempted, then the survival rate might be 30 per cent after five years.

49Where part of the confusion may have arisen in the parents’ mind is that the statistical analysis has been undertaken on the basis of a sample survey of children who have had the medical procedure and who have then commenced the conventional therapy within a much shorter period of time than Oshin has. Had the parents been prepared to take the advice of the doctors, then the treatment would have been underway already, and the 50 to 60 per cent probability referred to would logically apply to Oshin.

50Because there is no sample dealing with children who are in the same position in which Oshin now finds himself, it is not possible for the doctors to do more than say that his chances of survival are now somewhat less than they might otherwise have been, and that the figure is more likely to be at the lower end of the 50 to 60 per cent range, or even perhaps a little lower than that. But that is a very high prospect of survival, and the decision has to be made in light of that very significant matter.

51Most significant for the parents to take into account is all the suffering that Oshin will have to go through if he does have the chemotherapy and then the radiotherapy. It appears that the parents at all times have been fully informed of all of the likely side effects, including the possibility of mortality associated with the chemotherapy, although that is said to be at a very, very low level of likelihood.

52This is not to say that Oshin will suffer from all of these side effects but, sadly, it appears that he will suffer from many of them, and that he will experience a poor quality of life during the course of the treatment. In fact, it is suggested by the parents that his quality of life during this time may even be worse than what might be considered “average” because of the fears that he has about seeing his own blood and his reaction to the occasions that he has been in the hospital.

53At this point, I do not have evidence other than that of the parents in that regard, and I do not, of course, discount the parents’ evidence. Parents, in fact, are probably in the best position to assess the impact of procedures on their child, and I do take into account the fact that there will be, in all probability, a number of serious adverse impacts for Oshin. At the moment though, I am dealing only with those side effects associated with chemotherapy, it being noted that some of the side effects associated with radiotherapy are of a longer term nature and, clearly, are a matter of real concern, including, for example, the likelihood of decreased intelligence and other serious side effects associated with radiotherapy.

54For the record, it is necessary for me to note that the reason I am not today dealing with the issue concerning radiotherapy is that whilst the preferred treatment program of the doctors was for there to be an intensive period of radiotherapy first, including up to 31 treatments over a period of weeks, the arrangements that were put in place at Sir Charles Gairdner Hospital for that to occur are no longer available because of the elapse of time. It is now not practicable for that part of the treatment to commence until 26 April 2016. Accordingly, the commencement of radiotherapy can be the subject of further review by the court.

55I should just complete that part of the chronology by saying that following the MRI on 17 March 2016, and following the second meeting of the committee, there was a follow-up meeting between the parents and the doctors on 18 March 2016. The doctors’ view of that meeting was that the parents appeared to be more open to treatment with curative intent, including the preferred option of radiotherapy and chemotherapy, although a chemotherapy-only regime was also discussed. However, the parents, understandably, wanted time to consider those options, and another meeting was scheduled for 21 March 2016.

56The parents did not attend the meeting on 21 March 2016 and one of the doctors then contacted the parents by telephone. The parents explained why they were not at the meeting.

57A further telephone meeting was arranged later that day and there was then discussion and disagreement associated with the doctors’ advice, which was also complicated by the fact that Oshin’s birthday was coming up on 1 April 2016. The family wanted to have a party and wanted any treatment delayed until after the party.

58Recently, the date for the party has been advanced because the parents were aware that the matter was coming up in court. The party is now going to be held this Saturday in a local park. It is a very big event in the family. I am told that Oshin has never had a birthday party because of his mother’s back problems. A big gathering has been arranged with his family and school friends, and it would be fair to anticipate that Oshin would be looking forward to this very much. If treatment were to commence tomorrow, as was originally proposed by the hospital, then that party certainly could not happen in the form in which it has been arranged, hence the hospital’s agreement that the intervention can commence on the day after the party. This will allow the family and Oshin to celebrate in the style that has been planned.

59This brings me to the legal matters that I am required to take into account. It has been noted that this is the first occasion that a matter of this nature has been brought in the Family Court of Western Australia. These types of applications appear to be extremely rare, and until now the Supreme Court of Western Australia has been asked to deal with such cases in its parens patriae jurisdiction. Counsel from the State Solicitor’s Office was able to refer me to only to two occasions when similar matters have been before the Supreme Court of Western Australia, although one suspects there might be more.

60The last time that the Supreme Court heard such a matter, an application was made by the hospital in relation to a child who I understand was suffering from a similar illness. The parents were opposed to medical intervention. While the matter was before the court, the child was spirited out of the country, and taken overseas for alternative therapy, and very soon thereafter died. The other matter to which counsel referred was a case that was dealt with as long ago as 2004.

61Given this is the first such application to come before this court, it is important for me to say something about what I understand to be the legal and jurisdictional position. In this regard, I have been greatly assisted by the submissions made by Ms Conley.

62Oshin’s parents are not married. He is, therefore, not a “child of a marriage” within the meaning of the Family Law Act 1975 (Cth) (“the federal Act”). These proceedings, therefore, if they fall appropriately within the jurisdiction of this court at all, are to be dealt with under the provisions of the Family Court Act1997 (WA) (“the Act”), which confers jurisdiction.

63Section 36 of the Act is the provision that confers non-federal jurisdiction on the court, and it provides:

(1)The Court has throughout the State the non federal jurisdictions conferred on it by or under this or any other Act.

(2)Without limiting subsection (1), the Court has non federal jurisdiction throughout the State, subject to the Family Law Act, the Adoption Act 1994, the Surrogacy Act 2008 and the Children and Community Services Act 2004, to make —

(a)parenting orders in respect of; and

(b)orders in respect of the welfare of; and

…

any child of a marriage and any child whose parents were not married to each other at the time of the birth of the child or subsequently, whether or not the child is a member of a family.

…

64The other relevant section to consider in relation to jurisdiction is s 162, which provides:

(1)In addition to the jurisdiction that a court has under this Act in relation to children, a court also has jurisdiction to make orders relating to the welfare of children.

(2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

65This provision of the Act mirrors a provision in the federal Act, and I consider that it is well accepted that those provisions confer the parens patriae jurisdiction of the Supreme Courts on the Family Court.

66It is unnecessary to decide for the purposes of this case but, in my view, Ms Conley is correct in submitting that the jurisdiction conferred on this court by those provisions is exclusive to this court and would exclude the jurisdiction of the Supreme Court of Western Australia in relation to matters brought under the Act. A different position would apply, as I understand the law, in relation to matters under the federal Act. It would be important, in a similar case involving a child of a marriage, to take account of the fact that the Supreme Court of Western Australia is conferred with full jurisdiction under the federal Act.

67There can be no doubt that the jurisdictional requirements of the Act have been met, because Oshin is present in Western Australia today, as are both of his parents. There is also, in my view, no doubt that the applicant has standing, because s 185(2) of the Act provides that an application can be made to this court not only by a child’s parents, or by his or her grandparents, or by the child himself or herself, but by “any other person concerned with the care, welfare or development of the child”. As the authorities to which Ms Conley has referred indicate, it is accepted that a person in the position of the applicant in this case is a person who is concerned with the care, welfare and development of the child.

68The parens patriae jurisdiction of the court, and the welfare jurisdiction specifically conferred by the statute, as has been said by Ms Conley, is exceptionally wide. It might be thought that it is even wider in the non-federal jurisdiction of the court, because the Act does not need to be read subject to the constitutional limitations that apply in proceedings about a child of a marriage.

69In one other case it has been determined that it was within the parens patriae jurisdiction of the Supreme Court of New South Wales to order the administration of chemotherapy to an 11-year-old child against the wishes of both the child and the parents, where the cessation of chemotherapy would have substantially increased the chances that the child would die. There are also other examples mentioned in the submissions that establish to my satisfaction that it is within the power of a court to make an order in the terms sought by the hospital.

70It is accepted, of course, in all such matters, that parental responsibility for a child under the age of 18 years lies with the parents. In this case, although not married, the parents have parental responsibility, which means “all the duties, powers, responsibility and authority, which, by law, parents have in relation to children”. It is also accepted that it would be within the power of the parents to give consent to the medical treatment for Oshin.

71It is true, as was said in the submissions, 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. This case does not fall within that category, but it is necessary for the hospital to make this application, because the parents’ consent to the medical treatment has not been forthcoming.

72As 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.

73Put 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.

74I am guided in arriving at my decision by the judgment of Pullin J in Minister for Health v AS (2004) 29 WAR 517. This is the 2004 case to which I referred earlier. His Honour said at [19]:

The question is not whether to respect the parent’s wishes. The role of the court is to exercise an independent and objective judgment and balance the advantage or disadvantage of the medical step under consideration. While the parents’ wishes may be relevant, they are not determinative.

75His Honour went on to say at [21]:

The guiding principle upon which the exercise of the parens patriae jurisdiction is based, is that the welfare of the child is paramount. Protection of the child should be elevated above all other interests, although those other interests are not completely disregarded … The welfare of the child encompasses the child’s physical wellbeing.

76And this is the critical statement by his Honour:

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…

77His Honour also went on to say though at [23]:

Obviously, the court’s power in the inherent jurisdiction, to countermand the wishes of a child, a patient or a parent, is to be exercised sparingly and with great caution.

78That, of course, is what the Ethics Committee said in this case. The evidence makes clear, beyond all doubt, that Oshin 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.

79The evidence further indicates that there is a probability in the range of 50 per cent that if he has both chemotherapy and radiotherapy, he will be alive in five years’ time. Those statistics, given by experts of considerable experience and expertise, indicates to me that there is “a good prospect of a long-term cure”.

80It is equally true to say that there is a prospect that there will not be a cure, and I do not proceed in any way on the basis that there is any guarantee of a cure. In fact, there is a high prospect that there will not be a cure, but there is an equally good prospect there will be. Balanced against that, I do take into account the wishes of the parents.

81All of the evidence indicates that the parents have tried to approach this matter on the basis of what is in the best interests of their child. They are correct in saying that, of all people, they would be able to observe matters relating to their child that others would not. But, on the other hand, I also consider that there is wisdom in what was said in the deliberations of the Ethics Committee about the difficulty for parents to see beyond the immediate short to medium term negative impact of the treatment upon the quality of life of the child against the prospect that there is a cure possibly available.

82I take into account all that the mother has said in her affidavit, and all of the side effects that are referred to in the material provided by the doctors about the adverse impact on Oshin over the next months if this treatment is commenced. But when called upon to act cautiously, recognising that I am not making the decision about my own child, but making the decision about the child of others, I consider that the prospect of the long-term cure is the matter that must most heavily weigh in the decision, and it is the reason I propose to order that the treatment commence on Sunday after Oshin has had his birthday party.

83One other matter that I think ought to be given weight is that the uncontested medical evidence is that the great majority of other parents faced with a similar decision would opt for the intervention that the hospital proposes.

I certify that the preceding [83] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
24 March 2016