Minister for Health v AS - [2004] WASC 286

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: MINISTER FOR HEALTH -v- AS & ANOR [2004] WASC 286

CORAM: PULLIN J

HEARD: 16 DECEMBER 2004

DELIVERED : 17 DECEMBER 2004

FILE NO/S: CIV 2587 of 2004

BETWEEN: MINISTER FOR HEALTH
Applicant
AND
AS
First Respondent
LS
Second Respondent

Catchwords:

Family law - Welfare of child - Exercise of Court's parens patriae jurisdiction - Order to authorise medical treatment contrary to child's wishes

Legislation:

Human Tissue and Transplant Act 1982 (WA), s 21

Supreme Court Act (WA), s 16

Result:

Application granted

Category: A

Representation:

Counsel:

Applicant:     Mr R M Mitchell
First Respondent           :     Mr V Toole
Second Respondent       :     Mr V Toole

Solicitors:

Applicant:     State Solicitor
First Respondent           :     Mr V Toole
Second Respondent       :     Mr V Toole

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

Director General of Department of Community Welfare v T'Hart & Ors [2003] WASCA 110
Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644
Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112
In Re D (A Minor) [1976] Fam 185
Jungarrayi v Olney, Aboriginal land Commissioner (1992) 105 ALR 527
P v P (1994) 181 CLR 583
Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557
Re A (children) (conjoined twins) [2000] 4 All ER 961
Re B (A Minor) (Wardship Medical Treatment) [1981] 1 WLR 1421
Re Baby A [1999] NSWCA 787
Re L (1998) 2 FLR 810
Re McGrath (Infants) [1983] 1 Ch D 143
Secretary, Department of Health and Community Services v LMB & SMB (1992) 175 CLR 218
Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 27 ALR 367

Case(s) also cited:

Chignola v Chignola (1974) 9 SASR 479
G v P [1977] VR 44
Hodak & Hodak v Newman (1993) 115 FLR 1
K v Minister for Youth and Community Services; Re Infant K (1982) 8 Fam LR 250
Re C (a minor) (detention for medical treatment) [1997] 2 Fam Law R 180
Re E (a minor) (wardship, medical treatment) [1993] 1 Fam Law R 386
Re Heather [2003] NSWSC 532
Re L (medical treatment, Gillick Competency) [1998] 2 Fam Law
Re R (a minor); In re (wardship, consent to treatment) [1992] Fam 11
Re W (a minor) (medical treatment, courts jurisdiction) [1992] 3 WLR 758
Robinson v Field; Field v Field (1981) 7 Fam LR 866

PULLIN J: This is an application by the Minister for Health seeking an order authorising the medical staff at the oncology ward at PMH to give certain blood transfusions to an infant who I will call "L" and to direct L to undergo such treatment. The precise transfusions and the circumstances in which they are to be given are set out in the originating motion as follows:
"(i)if active and ongoing bleeding from any site in his body is present and his platelet count has dropped to less than 10x10⁹ per litre; or.
(ii)if he is febrile (ie has an elevated temperature), with or without documented infection, and neutropenic (ie low neutrophil count) and his platelet count has dropped to less than 20 x 10⁹per litre.
(b)A transfusion of red blood cells (packed cell concentrate) may be given to [L] in critical clinical situations of cardiac compromise (ie early cardiac failure) together with significant anaemia (ie haemoglobin is less than 40 grams per litre)."
L is 15 years of age and a child of the marriage of the respondents. L and his parents are Jehovah's Witnesses. They hold a belief that L should not receive blood transfusions. The respondents have left the final decision to L. L has signed a form which reads that "He expressly withholds his consent to and forbids under any circumstances the administration of blood or blood products." I am satisfied that L is of sufficient maturity and intelligence to understand the nature and implications of his decision which he has made after discussions with his treating doctors and his parents.
I now turn to the medical history which has led to this application. L was first referred to PMH in October 2004 for investigation of anaemia and an apparently enlarged spleen. Investigations which were conducted indicated the presence of an abdominal mass and there was a diagnosis of possible abdominal lymphoma. In order to make a definitive diagnosis a surgical biopsy of the abdominal mass was necessary. On 23 November 2004 treating doctors met with L and his parents. They were advised that during the biopsy procedure there was a small chance that he might bleed intraoperatively and that he might become ill and die without a blood transfusion. L stated that he did not wish to have a transfusion.
On 24 November 2004 there was a further meeting when it was explained by the medical director of PMH that pursuant to s 21 of the Human Tissue and Transplant Act 1982, a blood transfusion could be given in a life threatening situation during surgery despite the absence of consent. It was on this day that L signed the refusal to permit the blood transfusion. He did, however, consent to the biopsy procedure. On 26 November the biopsy was carried out without any need for a transfusion. On 1 December 2004 a diagnosis of atypical Burkitt's lymphoma was made and confirmed. It is a very aggressive lymphoma most often found in children. It is treatable by chemotherapy.
On 2 December 2004, Dr Phillips, L's oncologist, met with L and his parents and explained that an intensive course of chemotherapy would provide the best option for disease response and potential long-term disease-free survival. This treatment would take six to nine months to administer. Dr Phillips explained that with this treatment the likelihood was that the tumour would become necrotic, shrink and die. This likelihood, in the opinion of Dr Phillips, would be put at 90 per cent and the chance of long-term disease-free survival at greater than 70 per cent. Dr Phillips also informed L and his parents that without treatment the condition is fatal, and L would die.
The problem is that the chemotherapy has side effects, and the side effects themselves may be fatal if not treated. The treatment for these side effects is to give blood transfusions, and that treatment is the subject of the application. The side effect of the chemotherapy is myelosuppression, that is bone marrow suppression, which causes a reduction in the haemoglobin, a reduction in the white cell count and a reduction in the platelet count for protracted periods of time. With very low platelets there is a significant risk of life threatening bleeding, most likely intracranial or gastrointestinal, especially with concurrent infection.
Platelet levels may go slightly lower than the usual clinical guideline level of 10 x 10⁹ per litre if there is no elevated temperature. However, the platelet count would need to be maintained at a higher level in the presence of fever when the risk of bleeding is known to be greater. L may need red blood cells but would most likely be treated by a transfusion of platelets.
Dr Alessandri is an oncologist who is treating L in the absence of Dr Phillips. Dr Alessandri explained in oral evidence that platelets are essential in clot forming and to prevent bleeding. If platelet levels drop then there may be spontaneous bleeding and bleeding which may continue unabated. If that occurs death will follow. Dr Alessandri also explained that white cells contain neutrophil and if the neutrophil count drops this will increase the risk of infection. A drop in neutrophil count is also a side effect of the chemotherapy. This deficiency can also be treated by platelet transfusion. In addition, red blood cells may also be required to counteract the adverse side effects of chemotherapy. A transfusion of red blood cells would prevent early cardiac failure and deal with significant anaemia which may occur.
Last week when this application was commenced it was planned to try a less intensive treatment which would not require blood transfusions but by yesterday it was clear that the less intensive treatment would not work and was no longer an option. As a result the intensive chemotherapy course was begun. L consents to this treatment. The haematological side effects from this treatment which I have described earlier are likely to begin to appear within seven to 10 days from yesterday. If the conditions referred to in the proposed orders arise then L will almost certainly require the transfusions to prevent a life threatening situation from occurring.
Dr Alessandri gave evidence about the risk that L would die from blood loss or a bleed into vital organs such as the brain if he has no transfusion. She said there is unfortunately not much data available to refer to to assess this risk because transfusions are routinely given to prevent such bleeding occurring. However, Dr Alessandri considers that the risk is considerable.
Dr Phillips in her affidavit says that unless blood transfusions can be given, the probable complications of the treatment are likely to cause L's death. L has been advised of this. L still refuses his consent to the transfusions.
I heard evidence from Dr Doherty, a consultant psychiatrist who has met with L, and she is of the opinion that he has no psychiatric or delusional symptoms, that he has no wish to suicide or self-harm and that his attention and concentration appear normal. Dr Doherty said that L had said to her that the belief of not accepting blood products had been with him all his life and is an integral part of him, and he could not agree to receiving blood products even though it may mean that his chances of dying would be increased. Dr Dogherty asked him whether he would accept blood products should they be ordered by the Court and he stated that this would be a different matter and would be out of his hands, as the decision would be made by the Court and not by him. He also said to Dr Doherty that the Jehovah's Witnesses would also accept that in that situation it was not his decision to receive the transfusion.
Counsel for the respondent said that L denies that he would accept the blood products if the court approved the transfusions. Counsel said that, by this, it was not suggested that L would physically resist the transfusions but rather he would still hold his belief that blood products should not be administered, even if administered under a court order. Dr Doherty also said:
"I am of the belief that the boy does not wish to have blood products should he be given a choice, but would accept it should the choice be made by the Court on his behalf. He does comprehend the seriousness of his illness, but is in denial to some extent in that he does not wish to think of the negative possibilities but prefers to remain optimistic and does not wish to discuss the negative outcomes to any extent."
Counsel for the respondents also asked questions of Dr Alessandri about the risk of side effects from blood transfusions. Dr Alessandri acknowledged that there are sometimes side effects, but she expressed the opinion that the risk of side effects from transfusions is very low, and very low indeed compared with the risk of death or serious injury if intensive chemotherapy continues, the likely side effects to the chemotherapy occur and transfusions are not given.
Counsel for the respondents also asked Dr Alessandri whether the hospital and the medical staff would investigate and explore alternative methods of treating the side effects of the chemotherapy. There are some possible alternatives which are not usually employed for a number of reasons (including side effects from those alternatives). Nevertheless, Dr Alessandri said that the treating doctors would be and indeed were already investigating these alternatives. If they are reasonably available and clinically appropriate then they will be used instead of blood transfusions, but the hospital still wants to know that it can give transfusions if in the opinion of staff it becomes necessary to do so.
I now turn to some legal matters concerning jurisdiction, who may invoke jurisdiction and when it may be exercised. There is no doubt, in my opinion, that this Court has jurisdiction to make orders of the kind sought and to give directions in all matters relating to the welfare of infants whether they be a child of the marriage or otherwise, including where parents have the power to consent or otherwise. See s 16 of the Supreme Court Act 1935 and Secretary, Department of Health and Community Services v LMB & SMB (1992) 175 CLR 218 ("Marion's case") at 259.
Parens patriae jurisdiction may be exercised without the relevant child or person being a ward: see Marion's case at 280; the parens patriae jurisdiction may be invoked by any person including health care professionals having the care of the child, see In Re D (A Minor) [1976] Fam 185 and Re B (A Minor) (Wardship Medical Treatment) [1981] 1 WLR 1421.
The court's parens patriae jurisdiction is not excluded by the Family Law Act 1975; see P v P (1994) 181 CLR 583 at 604. Further, as the applicant is not one of the identified persons who could make an application under the welfare jurisdiction of the Family Court of Western Australia this Court's parens patriae jurisdiction is not excluded by the Family Court Act 1997: see Director General of Department of Community Welfare v T'Hart & Ors [2003] WASCA 110 at [38].
Implicit in the power of parents to consent to medical treatment for a child incapable of giving consent is the recognition that all 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 - see Marion's case (supra). 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 parent's wishes may be relevant, they are not determinative. See Re A (children) (conjoined twins) [2000] 4 All ER 961 at 1007 ‑ 1008; In Re B (A Minor) Wardship (supra).
Likewise, the fact that the child refusing to consent to treatment may be of sufficient maturity and intelligence to understand the nature and implications of the proposed treatment, so as to be "Gillick competent", while relevant and important does not prevent the court from authorising medical treatment where the best interest of the child require. See Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644 at [99] ‑ [103]. As to "Gillick competent": see Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112; Re L (1998) 2 FLR 810 at 813.
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. See Re D (A Minor) (supra); Re Baby A [1999] NSWCA 787 at [20].The welfare of the child encompasses the child's physical wellbeing. See Re McGrath (Infants) [1983] 1 Ch D 143 at 148. 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 the child's best interests to receive that treatment: Re B (A Minor) (supra) at 1424.
There are cases where courts have exercised parens patriae jurisdiction to order medical treatment notwithstanding the refusal of consent of a child or parents who are Jehovah's Witnesses - see, for example, Re L (1998) 2 FLR 810. Reference was made to a case in which a court refused to order medical treatment where a Jehovah's Witness suffering from leukaemia refused the treatment. That was Walker v Region 2 Hospital Corporation (1994) 116 DLR (4th) 477, but in that case the treating medical practitioners were of the view that forced transfusions would be detrimental to the patient's health, distinguishing it from this case.
I now turn to make the decision in this case by applying the law to the facts of this case. Obviously the court's power in the inherent jurisdiction to countermand the wishes of a child patient or a parent is to be exercised sparingly and with great caution. However, there are cases where it is necessary to do so. I have carefully considered the wishes of L as well as the wishes of his parents, but I have reached the view that this is clearly such a case. L's wishes are governed by his religious belief which is leading him to the conclusion that he has reached, a conclusion which is supported by his parents. This conclusion has led him to reject the expert medical advice which is available to him. The justification for overriding his wishes and that of his parents is that on the evidence his health and even his survival are seriously at risk unless steps are taken to give him a transfusion if the need arises.
I should also add that if the situation is reached where it is likely that L would die then, s 21 of the Human Tissue and Transplant Act 1982 will apply. Section 21 reads:
"(1) A medical practitioner may perform a blood transfusion upon a child without the consent of any person who is legally entitled to authorize the blood transfusion if -
(a)such person -
(i)fails or refuses to so authorize the blood transfusion when requested to do so; or
(ii)cannot be found after such search and enquiry as is reasonably practicable in the circumstances of the case;
and
(b)the medical practitioner and another medical practitioner agree -
(i)as to the condition from which the child is suffering;
(ii)that the blood transfusion is a reasonable and proper treatment for that condition; and
(iii)that without a blood transfusion the child is likely to die;
and
(c)the medical practitioner who performs the blood transfusion on the child -
(i)has had previous experience in performing blood transfusions; and
(ii)has, before commencing the transfusion, assured himself that the blood to be transfused is suitable for the child.
(2)When a medical practitioner has performed a blood transfusion on a child without the consent of any person legally entitled to authorize it and in respect of that transfusion the requirements and conditions of this section have been complied with, the transfusion shall be deemed for all purposes to have been performed with the authority of a person legally entitled to authorize it.
(3)Where a medical practitioner other than the medical practitioner who is to perform the blood transfusion on the child cannot be found after search or enquiry for such time as the last-mentioned medical practitioner considers reasonable in the circumstances of the case, having regard to the emergency arising from the condition of the child, it is sufficient compliance with subsection (1)(b) if that last-mentioned practitioner satisfies himself -
(a)as to the condition from which the child is suffering;
(b)that a blood transfusion is a reasonable and proper treatment for that condition;
(c)that to delay the blood transfusion until that other medical practitioner can be found and be available for consultation would cause a serious deterioration in the child's condition; and
(d)that without a blood transfusion the child is likely to die.
(4)In this section -
'blood transfusion' means the transfusion of human blood, any constituent of human blood or saline solution or other liquid, into a child and includes the exchange of the whole or any part of the blood of a child and all medical and surgical procedures necessary to perform the transfusion or exchange; and
'child' means a person who is or appears to be under the age of 18 years.
(5)Nothing in this section relieves a medical practitioner from liability in respect of the administration of a blood transfusion to a child being a liability to which he would have been subject if the transfusion had been administered with the consent of a parent of the child or a person having authority to consent to the administration of the transfusion."

The expression "is likely to die", appears within that section. The word "likely" in that expression is a word which is susceptible of various meanings. It may mean "probable" in the sense of more likely than not, a more than a 50 per cent chance or it may mean a real or not remote possibility. There are other possible meanings. See Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557 at 564. The meaning depends on the statutory context.
In my opinion s 21 is a provision intended to benefit the welfare of children. The section allows for transfusions where persons authorised to give consent cannot be found to give consent, where they fail to give consent or where those persons refuse to give consent. It operates where such treatment is a reasonable and proper treatment.
This being a beneficial legislative, provision it should be construed liberally in favour of the persons for whose benefit the legislation was enacted. Thus any ambiguity should be resolved by beneficial construction. As a result it is my opinion that the word "likely" means "a real, not remote chance or possibility regardless of whether it is less than 50 per cent." See Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 27 ALR 367 and Jungarrayi v Olney, Aboriginal Land Commissioner (1992) 105 ALR 527.
On the evidence presented to me, at the time the need for a transfusion arises, s 21 of the act will apply to provide protection. Dr Alessandri said, however, that there is uncertainty within the profession about whether the protection of the Act applies in certain circumstances. She was concerned, for example, that in L's case the Act would not apply until there was a haemorrhage which could not be stopped and that this might happen when L was at home. If that situation arose, he might die before a transfusion could be given back at the hospital.
In my view the staff would not have to wait until that happened in the circumstances of this case. If at an earlier time two medical practitioners considered it was "likely", as I have explained the meaning of that word, that L would die without the transfusion, and the other conditions in s 21 were met, then they would have the protection of the Act.
This legislation exists to avoid the cumbersome procedure of an application to the court. If there were a genuine dispute about the application of the section then court proceedings might be necessary in some cases. If, for example, there were a dispute about whether a patient would die then proceedings might be necessary to resolve that issue, but there is no such dispute here. L and his parents accept the advice that L is likely to die if chemotherapy continues, the likely side effects occur, and nothing is done to ameliorate those side effects.
L and his parents simply say that their religious beliefs preclude them from giving consent to a transfusion if it is offered when thought to be the appropriate treatment. This is precisely the type of case where s 21 applies. Hospitals are not to be encouraged to make applications of this kind in clear-cut cases. They should rely upon the provisions of s 21. In my view, hospitals should document decisions made under s 21 and should put in place procedures to retain those records for long periods of time in view of the long limitation periods that apply in relation to infant claims.
I have been informed that there have not been any decisions dealing with s 21 of the Act. I acknowledge, as is clear from what I have said earlier, that the word "likely" is a word which may in some situations have different meanings. This may be the reason why there has been some anxiety on the part of the doctors about whether s 21 would protect them in a case such as this. As a result, I am prepared to make the orders to provide the certainty the medical staff seek in this case.
The plaintiff is prepared to give an undertaking to the court concerning the possible use of other strategies in the following form:
"The Applicant undertakes to use all strategies other than the transfusion of flood or blood products, which in the opinion of its treating oncology team are reasonably available and clinically appropriate, with the aim of attempting to avoid the circumstances specified in paragraphs 2(a) and (b) of the originating motion from arising."
As a result, I make the orders sought and it will be subject to the undertaking.