Northern Sydney and Central Coast Area Health Service v CT by his Tutor Et

[2005] NSWSC 551

CITATION:	Northern Sydney and Central Coast Area Health Service v CT by his Tutor ET [2005] NSWSC 551
HEARING DATE(S):	26/05/05; 27/05/05; 01/06/05
JUDGMENT DATE :	10 June 2005
JUDGMENT OF:	Nicholas J
DECISION:	para 29

CATCHWORDS:	parens patriae jurisdiction of court - intellectually disabled adult proposed as donor of blood stem cells to his brother - whether any person legally capable of authorising the medical procedures - whether in best interests of donor to authorise transplant procedures for benefit of his brother
LEGISLATION CITED:	Guardianship Act 1987 s 33A, s 33(1)(a), s 36(1)(a) Human Tissue Act 1983 s 21Z
CASES CITED:	DoCS v Y [1999] NSWSC 644 Director General of the Department of Community Services v "BB" [1999] NSWSC 1169 GWW (husband) and CMW (wife) No. HB 1447 of 1996 (Family Court of Australia) Re F Mental Patient: Sterilisation [1990] 2 AC 1 Re Heather [2003] NSWSC 532 Re Jane (1989) FLC 92-007 Re Jessica [2001] NSWSC 1207 Secretary, Department of Health & Community Services v JWB & SMB (Marion's case) (1992) 175 CLR 218
PARTIES:	Northern Sydney and Central Coast Area Health Service - plaintiff CT by his Tutor ET - defendant
FILE NUMBER(S):	SC 3170/05
COUNSEL:	M B Evans - plaintiff J R Kell solicitor - defendant
SOLICITORS:	Patricia O'Farrell, Corporate Counsel, Northern Sydney and Central Coast Area Health Service Royal North Shore Hospital - Plaintiff Hunt & Hunt - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Nicholas J

10 June 2005

CT by his Tutor ET

JUDGMENT

1 His Honour: Northern Sydney and Central Coast Area Health Service (the plaintiff) invokes the parens patriae jurisdiction of the court in respect of an intellectually disabled adult to whom I shall refer as CT. By its summons it seeks the following orders:

“(1) An order authorizing the plaintiff, by its servants or agents, to carry out procedures for the purpose of peripheral blood collection from the incapable person CT to collect peripheral blood stem cells from the incapable person CT, including authority to carry out any necessary blood or other tests required for the said procedures.
(2) An order authorizing the plaintiff, by its servants or agents, to carry out procedures for the purpose the performance of a bone marrow harvest to collect bone marrow cells from the incapable person CT for transplant to his brother NT, including authority to carry out any necessary blood or other tests required for the said procedures.
(3) Order that the authorization conferred by orders 1 and 2 above include authority for the administration of any drug or medication that may be incidental to or necessary for either of the above procedures”.

2 The proposed donee of the peripheral blood stem cells, or the bone marrow cells, is CT’s brother, NT, who is suffering from non Hodgkin’s lymphoma. On 27 May 2005 CT’s mother (ET) was appointed to be his tutor pursuant to Pt 63, r 7 for the purpose of the proceedings, and she was represented by Mr J Kell solicitor.

3 The application raises the preliminary issue whether there is a person who could lawfully authorise or consent to the carrying out of the proposed procedure and, if not, whether it is in the best interests of CT for the court to make the orders sought under its parens patriae jurisdiction. There is no doubt, of course, as to the power of the court to make the orders sought under that jurisdiction in the appropriate case. Supporting authorities were reviewed in, for example, GWW (husband) and CMW (wife) No. HB 1447 of 1996 (Family Court of Australia), which was a case substantially similar to this one except that the donor was a child. (See also DoCS v Y [1999] NSWSC 644, Secretary, Department of Health & Community Services v JWB & SMB (Marion's case) (1992) 175 CLR 218, and Re Heather [2003] NSWSC 532).

4 After review of the relevant legislation I have come to the conclusion that there is no person lawfully capable of providing the necessary authority or consent to the procedures in this case.

5 Pursuant to s 33A(4)(d) Guardianship Act 1987 (the Act) ET, being a relative, is a “person responsible” for CT. However her power of consent is limited to that prescribed by s 36(1)(a) which provides:

“(1) Consent to the carrying out of medical or dental treatment on a patient to whom this Part applies may be given:
(a) in the case of minor or major treatment—by the person responsible for the patient”.

6 In s 33(1)(a) medical treatment is defined, relevantly, to mean “medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner”.

7 As a person responsible under the Act, ET also has a power of authorisation for the removal of tissue during medical, dental, or surgical treatment under s 21Z(1) Human Tissue Act 1983 which provides:

“21Z Authority to use tissue removed from person under guardianship
(1) A person responsible for a person who is a patient to whom Part 5 of the Guardianship Act 1987 applies may, by instrument in writing, authorise the use, for therapeutic, medical or scientific purposes, of any tissue removed from the body of the patient during medical, dental or surgical treatment”.

8 The procedure proposed in this case involves the removal of healthy peripheral blood stem cells or bone marrow cells from the body of an incompetent without any physical benefit to him for donation to, and for the benefit of, his sibling. It may be described as a non-therapeutic procedure the purpose of which is not to promote the physical welfare of the donor but that of a third party.

9 So understood, in my opinion, the proposed procedure is outside the class of medical treatment for which the person responsible may give consent under s 36(1)(a) of the Act. That provision enables consent to medical treatment “on” a patient which, having regard to the usual principles of construction, I understand to mean medical treatment which directly affects that patient in that it is for the purpose of the promotion of his or her personal health. I am satisfied it was not the legislative intention to include within this class to which consent may be given procedures or treatment for some other purpose.

10 The terms of s 21Z(1) Human Tissue Act 1983 reinforce this conclusion. Its effect is to empower a person responsible to authorise, for specified purposes, the use of tissue removed from the body of a person under guardianship during medical, dental or surgical treatment. It is a power that the person responsible lacks under s 36(1)(a) of the Act but which the legislature deemed necessary to provide. Nevertheless, in my opinion, it is clear that the authority given to the person responsible under s 21Z(1) is limited to the use of tissue which is removed during treatment of the same class as that referred to in s 36(1)(a) of the Act. That is to say, the treatment during which the tissue is removed is treatment which is carried out for the purpose of the promotion of the personal health of the patient, and not otherwise.

11 Absent a person authorised by statute to act on behalf of CT, it is clearly appropriate that application be made to the court for judicial approval of a procedure to benefit another which involves the injection of a drug, intrusions into his body, the possibility of a general anaesthetic, and the possibility of some adverse reaction. That it is desirable that the court should intervene, for example, in respect of organ transplant operations involving an incompetent donor has been recognised in Re Jane (1989) FLC 92-007 at p 77, 256 per Nicholson, CJ; and in Re F Mental Patient: Sterilisation [1990] 2 AC 1 at p 33. As Hannon, J pointed out in GWW and CMW the responsibility of the court to protect the welfare of an incompetent justifies intervention.

The proposed procedure

12 Dr Keith Fay has been a clinical haematologist at Royal North Shore Hospital for about six years. NT is under his care. Now 34 years old, NT was diagnosed in October 2003 with advanced stage non Hodgkin’s lymphoma (stage III, follicular grade 1) with enlarged lymph glands about his neck, axilla, groin and within his abdomen. It is a malignant condition primarily involving lymph nodes but may spread to other sites, especially the bone marrow, liver and spleen. Despite aggressive chemotherapy the illness has not been arrested and has relapsed. It is Dr Fay’s view that it will adversely affect his longevity.

13 According to Dr Fay the therapeutic options available to NT are either chemotherapy or an allogeneic stem cell transplant. Chemotherapy affords no chance of cure and is purely palliative. An allogeneic stem cell transplant offers the best chance of long-term disease control and possibly cure. Studies of patients of transplanted in NT’s situation show that greater than 75% remain in remission with no evidence of active disease at a three year follow-up, and a significant number of these may be cured.

14 Dr Fay explained that the purpose of the proposed procedure is to collect stem cells from CT either by way of peripheral stem cell collection from the blood stream, or directly from the bone marrow, a process which is described as bone marrow harvest. The standard practice is peripheral stem cell collection.

15 Prior to collecting from the blood stream the donor is given a drug which stimulates the marrow to make more cells. It is known as GCSF and is administered once a day for four days prior to the procedure and usually it will cause a donor to experience mild symptoms similar to those of influenza such as mild aches and a mild temperature. The procedure itself requires the donor to be connected to a cell separator by way of two intravenous cannuli, through which whole blood is drawn and blood minus the white cell layer which contains the stem cells is returned. The cannuli are inserted into each arm and the process takes approximately four hours during which the donor remains either in a chair or in bed. Normally a donor would feel well enough to go home at the end of the procedure.

16 A bone marrow harvest is carried out under general anaesthetic whilst the marrow is extracted from the marrow cavity through small needles inserted in the pelvis. There is some discomfort at the sites which lasts for a few days and may be relieved by ordinary analgesics. Dr Fay said that he did not know of any complicating factors and that usually there was no need to repeat the procedure as more cells were taken than would be required.

17 Dr Fay’s view is that having regard to NT’s condition the procedure should be performed within the coming month.

18 CT is 40 years of age and lives at home with his mother who prepares his meals and is his principal carer. He is unable to read or write and at night usually watches television. His mother assists him with shopping and handling money, and he takes medication to control is temper. He is in good physical health and is quite strong. CT is employed as a packer at a sheltered workshop conducted by the organisation known as the House with No Steps. He travels to and from work by bus each day.

19 According to Ms Belinda Macpherson, psychologist, CT has had a moderate intellectual disability since birth and lacks the ability to understand the broader consequences of the choices he makes.

20 CT has been found to be suitably matched to allow for an allogeneic stem cell transplant as therapy for NT’s relapsed disease. A matched sibling is an ideal donor rather than an unrelated matched donor found on the international registries, as the latter are associated with significant increased mortality and complications. Dr Fay’s view is that CT is the most suitable of his family to be a donor.

21 CT himself gave evidence. He said he understood NT was sick and wants to help him. He said that a doctor had told him that the treatment will involve placing needles in his arms, and in his bottom, and that afterwards his arms might be sore. Although it was plain that he lacks the capacity to fully understand the proposed procedure and what may be required of him, he left me in no doubt that his desire is to assist as best he can his brother.

22 CT’s mother, ET, is 64 years old and retired. In 1975 she and her husband, the father of the children, were divorced and since then he has had limited contact with the family and has not been involved with them in supporting and caring for CT. Her evidence, which I accept, is that she has explained to CT that NT is suffering from cancer and that the purpose of the procedure is to help him get better. CT has told her that he loves NT and that he wants to help him get better and that he does not want anything to happen to him. She said that she believes that in all the circumstances it will be in CT’s best interests to permit him to participate as a donor in the treatment of NT.

23 NT lives a short distance from CT and his mother and has maintained a close relationship with them. He assists in caring for CT when required and has agreed with his mother that when she is no longer able to look after CT he will ensure that he is properly cared for and supported.

24 ST is CT’s only sister and is aged 38 years. She is married and has two step-children and over the years has not been as closely involved and associated with CT as NT has been.

25 On 1 December 2004 the Guardianship Tribunal found that CT was a person who has a disability and, as a consequence, remains at least partially incapable of managing his person, and that he is a person for whom a guardian should be appointed. The Tribunal was satisfied that he has a disability and incapacity within the meaning of the Guardianship Act 1987 (the Act). It appointed NT and their sister, ST, as his guardians for a period of three years limited to determining where he may reside.

26 The exercise of the jurisdiction requires the court to regard the welfare and interests of CT as the paramount consideration. Relevant matters to be taken into account in determining what is in his best interest in all the circumstances include, in my opinion, his wishes as expressed by him and his level of understanding. I am satisfied that he at least understands that by participating in the procedure he will be helping his brother to get better and this is something he wishes to do. I infer from the evidence from both himself and his mother that he would be very distressed if he was refused the opportunity to help his brother and his brother subsequently died. This is consistent with the impression he gave me as having a genuine concern and affection for NT.

27 Also relevant to take into account is the effect upon CT of his involvement in the procedure. Dr Fay’s evidence is that the risk of complications associated with peripheral blood cell collection or bone marrow cell collection is small, and that any side effects are likely to be mild and of short duration while recovery is very rapid.

28 However the significant factors are the relationship between CT and NT and that it should continue for the future. It has already been described. It is a close one in which NT provides care and support to CT as well as assistance to their mother in attending to CT’s general welfare. It is proposed that NT will become the principal carer when ET is no longer able to continue as such, and if he survives her. This immeasurable benefit will be lost to CT should NT die. It cannot be doubted that it is in CT’s best interests to participate in the proposed procedure for the purpose of preserving NT’s life, and I so find. It is also significant that CT has been identified as the best donor for this purpose.

29 Having regard to all the circumstances and to the relevant considerations in my opinion the minimal risks involved in the procedures are overwhelmed by the present and future benefit to CT if NT’s life is saved. Accordingly I find that it is in CT’s best interests that he should participate as a donor of blood stem cells for his brother’s benefit.

30 I make the following orders:

(1) An order authorizing the plaintiff, by its servants or agents, to carry out procedures for the purpose of peripheral blood collection from the incapable person CT to collect peripheral blood stem cells from the incapable person CT, including authority to carry out any necessary blood or other tests required for the said procedures.

(2) An order authorizing the plaintiff, by its servants or agents, to carry out procedures for the purpose of the performance of a bone marrow harvest to collect bone marrow cells from the incapable person CT for transplant to his brother NT, including authority to carry out any necessary blood or other tests required for the said procedures.

(3) Order that the authorization conferred by orders 1 and 2 above include authority for the administration of any drug or medication that may be incidental to or necessary for either of the above procedures.

(4) Order that these orders be entered forthwith.

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