Patient Review Panel v ABY & ABZ - [2012] VSCA 264

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 128 of 2011

PATIENT REVIEW PANEL
	Appellant
v.
ABY AND ABZ	Respondents

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JUDGES:	Warren CJ, Tate JA and Beach AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 July 2012
DATE OF JUDGMENT:	26 October 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 264
JUDGMENT APPEALED FROM	ABY, ABZ v Patient Review Panel (Health and Privacy) [2011] VCAT 905

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ASSISTED REPRODUCTIVE TREATMENT — Assisted Reproductive Treatment Act 2008 — s 14 presumption against treatment — Appeal from decision of Victorian Civil and Administrative Tribunal – Question of law relied upon – Matters to be considered under s 15(3) when deciding if there is a barrier against treatment — Meaning of ‘welfare and interests of persons born’ and ‘best interests of a child’ — Not limited to risk factors relating to matter which gave rise to presumption against treatment — Not limited to whether matter which gave rise to presumption against treatment creates a risk of harm to child to be born — Risk factors must be identifiable and established — Must be a real risk of harm

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K Judd, SC with Ms E Latif	Victorian Government Solicitor’s Office
For the Respondents	Mr J Ribbands with Ms B Moleta	Defteros Lawyers

WARREN CJ, TATE JA AND BEACH AJA:

Background facts and legislation

The respondents, ABY and ABZ, are a married couple seeking to use IVF treatment. Such treatment is regulated by the Assisted Reproductive Treatment Act 2008 (‘the Act’).

The Act is structured so that, relevant to this matter, there are two ways by which a woman may undergo an assisted reproductive treatment. Under the first way, a woman and her partner may receive treatment if:

· she and her partner (if any) consents;

· a doctor is satisfied, on reasonable grounds, that certain criteria for treatment are met;

· a provider or doctor has not refused to carry out treatment; and

· no presumption against treatment arises.[1]

[1]Sections 10(1)(a), 10(1)(b)(i), 10(2) and implicit in s 15(1)(c). Specifically, a doctor must be satisfied of at least one of three criteria set out in s 10(2)(a).

Among other things, a presumption against treatment will arise if the woman seeking treatment, or her partner (if any) has committed a certain type of offence.[2]
[2]Section 14(1)(a). Such offences are those sexual offences listed in clause 1 of Schedule 1 to the
Sentencing Act 1991 and those violent offences listed in clause 2 of Schedule 1 to the
Sentencing Act 1991.

Under the second way, a woman may receive treatment if:

· she and her partner (if any) have consented; and

· the Patient Review Panel (‘the Panel’) has decided there is no barrier to the woman undergoing that treatment procedure.[3]

[3]Sections 10(1)(b)(ii), 15(1).

The Panel may conduct a review and consider whether a barrier to treatment exists under three circumstances:

15. Application for review
(1) A person may apply to the Patient Review Panel for a review if-

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] VSCA 264
Decision Date: 26 October 2012

CaseChat Overview and Summary

The Patient Review Panel, acting under the provisions of the Assisted Reproductive Treatment Act 2008, appealed against a decision made by the Victorian Civil and Administrative Tribunal which had granted approval for assisted reproductive treatment to the applicants, ABY and ABZ. The dispute centred around the interpretation of the Act's presumption against treatment, specifically under section 14, and the criteria for assessing barriers to treatment outlined in section 15(3). The Panel argued that the Tribunal had erred in its interpretation of the welfare and interests of persons born, and the best interests of a child, by not adequately considering certain risk factors in their decision.

The primary legal issues the court needed to address were the interpretation of the terms ‘welfare and interests of persons born’ and ‘best interests of a child’ as they relate to the presumption against treatment under the Act, and the scope of the risk factors that must be considered when determining a barrier to treatment. The court was required to determine whether the Tribunal had correctly identified and assessed the relevant risk factors and whether it had adequately considered the potential harm to the child to be born.

The court found that the Tribunal had misinterpreted the scope of the welfare and interests of persons born and the best interests of a child by narrowly focusing on the specific risks associated with the matter that had given rise to the presumption against treatment. The court clarified that the assessment must include identifiable and established risk factors that could pose a real risk of harm to the child, not merely those directly related to the presumption against treatment. The court held that the Tribunal should have considered a broader range of risk factors and potential harms, and thus the Panel's appeal was upheld.

The court's decision resulted in the quashing of the Tribunal's approval for the assisted reproductive treatment. The matter was remitted back to the Tribunal for reconsideration in light of the court's findings. The Panel was granted costs for the appeal.

Orders