Re Baby D (No 2)
[2011] FamCA 176
•16 March 2011
FAMILY COURT OF AUSTRALIA
| RE: Baby D (NO. 2) | [2011] FamCA 176 |
| FAMILY LAW - MEDICAL PROCEDURES – Application seeking orders and declarations for a “special medical procedure” on behalf of a child – Application brought by the parents on receipt of the opinion of the respondent hospital’s Clinical Ethics Committee – Where the medical practitioners involved supported the application – Where the procedure(s) sought included an extubation and then the administration of medication, sedation and palliative care if necessary – Whether the procedure(s) constituted a “special medical procedure” or a “special case” FAMILY LAW - WORDS AND PHRASES – Special medical procedure and meaning of “Medical Procedure Application” in the Dictionary to the Family Law Rules2004 (Cth) FAMILY LAW - STATUTORY INTERPRETATION – Meaning of “Major long-term issues” in s 4 of the Family Law Act1975 (Cth) |
| Commonwealth Constitution (Cth), ss 51, 76, 77 Equal Opportunity Act 1995 (Vic), s 16(1)(j) Family Law Act 1975 (Cth), ss 4, 60B(1), 60B(2), 60CA, 60CC(1), 60CC(2), 61B, 61C, 64B(2)(i), 65AA, 65C(c), 67ZC, 68L, 68LA, 69A, 69H, 69ZH, 92 Interpretation of Legislation Act 1984 (Vic), s 35 Family Law Rules 2004 (Cth), rr 1.04, 1.06, 1.07, 1.08, 4.09, 4.10, 6.01, 6.05 |
| Airedale NHS Trust v Bland [1993] AC 789; [1993] 1 All ER 821, cited Bropho v Tickner (1993) 40 FCR 165; [1993] FCA 25, applied Church v S Overton (2008) 40 Fam LR 357; [2008] Fam CA 952, cited DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 cited Fountain v Alexander (1982) 150 CLR 615; [1982] HCA 16, cited Gillick v West Norfolk AHA [1986] AC 112; [1985] UKHL 7, cited In the matter of the welfare of A (a child) (1993) FLC 92-402; (1993) 16 Fam LR 715, discussed Levy v The State of Victoria& Ors (1997) 189 CLR 579; [1997] HCA 31, applied Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor (2004) 219 CLR 365; [2004] HCA 20, applied P & P (1995) FLC 92-615; (1995) 19 Fam LR 1, discussed R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33, applied Re: Angela (Special Medical Procedure) (2010) 43 Fam LR 98; [2010] FamCA 98, discussed Re Alex (2009) 42 Fam LR 645; [2009] FamCA 1292, applied Re Baby A [2008] FamCA 417, discussed Re Baby D [2011] FamCA 14, related Re Brodie (Special Medical Procedure: Jurisdiction) [2008] FamCA 334, discussed Re BWV: Ex Parte Gardner [2003] 7 VR 487; [2003] VSC 173, cited Re GWW and CMW (1997) FLC 92-748; (1997) 21 Fam LR 612, discussed Re Inaya(Special Medical Procedure) (2007) 38 Fam LR 546; [2007] FamCA 658, applied Re J (a minor) wardship: medical treatment) [1992] 4 All ER 614; [1993] Fam 15, cited Re Michael (1994) FLC 92-471; (1994) 17 Fam LR 584, discussed Re: Sean and Russell [2010] FamCA 948, applied Re: Sally (Special Medical Procedure) [2010] FamCA 237, discussed Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15, applied Re Medical Assessment Panel; ex parte Symons (2003) 27 WAR 242; [2003] WASC 154, discussed United States Tobacco Co v Minister for Consumer Affairs & Ors (1988) 20 FCR 520; [1988] FCA 213, applied |
| APPLICANTS: | The Parents |
| RESPONDENT: | A Hospital |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| AMICUS CURIAE: | Office of the Public Advocate |
| DATE DELIVERED: | 16 March 2011 |
| FILE NUMBER: By Court Order, file number is suppressed |
| JUDGMENT OF: | Young J |
| HEARING DATES: | 12, 13, 18, 19 & 25 January 2011 |
REPRESENTATION
By Court order the names of counsel and solicitors have been suppressed
ORDERS DELIVERED ON 27 JANUARY 2011
IT IS DECLARED:
THAT the parents (the mother and father of Baby D) are permitted to authorise and give consent on behalf of their child to the hospital and its staff and medical practitioners:
(a)first to remove and not replace the endotracheal tube from the airway of Baby D; and
(b)secondly and if Baby D is in pain or develops respiratory distress or collapse suffered as a consequence of the removal or absence of the endotracheal tube, then to provide palliative care and administer such sedation or other medication as is necessary and proper.
THAT in the event the parents of Baby D permit and authorise the actions in paragraph 1(a) and (b) hereof then the hospital, its staff and medical practitioners may:
(a)remove and not replace the endotracheal tube from the airway of Baby D;
(b)provide palliative care to Baby D in the form of administering such sedation or other medication as is considered necessary and proper to relieve pain or distress exhibited by Baby D as a consequence of the removal or absence of the endotracheal tube; and then
(c)withhold treatment that would have the effect of artificially prolonging the life of Baby D.
THAT it is further declared that the actions and treatments identified in paragraphs 1 and 2 above are not Special Medical Procedures.
IT IS FURTHER ORDERED:
THAT the parents (the mother and father of Baby D) in the exercise of their parental responsibility forthwith jointly sign and have independently witnessed a written authority and consent document, prepared by their solicitors, sufficient and proper for them to authorise and permit the conduct and actions of the hospital, its staff and medical practitioners pursuant to paragraph (2) hereof.
THAT the appointment of the Independent Children’s Lawyer be otherwise discharged one (1) month after the delivery of the subsequent reasons for judgment.
THAT all extant applications be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.
THAT for the purposes of publication of this order and judgment as authorised pursuant to s 121(9) of the Family Law Act 1975 (Cth):
(a) this matter be known by and referred to as Baby D;
(b)the names of each doctor or medical specialist and the hospital referred to within the judgment be anonymised;
(c)the names of both parents be anonymised and the child be referred to only as Baby D;
(d)all references to any geographic locality be deleted;
(e)all references to the file number, Registry information and names and details of any of the legal representatives, barristers, solicitors and persons appearing by leave as a friend of the Court, be suppressed.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the parents, Senior Counsel for the hospital and Counsel for the Independent Children’s Lawyer.
IT IS NOTED
A. THAT the reasons for judgment will be delivered as soon as practicable.
B.THAT these Orders and Declarations are largely in the form sought by the hospital and agreed to by the parents and the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Re: Baby D is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA |
FILE NUMBER: By Court order, file number is suppressed
| The Parents |
Applicant
And
| A Hospital |
Respondent
And
| Victoria Legal Aid |
Independent Children’s Lawyer
And
| Office of the Public Advocate |
Amicus Curiae
REASONS FOR JUDGMENT
ISSUE
In accordance with the written opinion and requirement of the respondent hospital’s Clinical Ethics Committee, and upon the recommendation of highly qualified medical professionals, the applicant parents sought orders and declarations for the medical procedure known as extubation to be performed upon their child and thereafter for artificial life prolonging treatment to be withheld. The issues considered in these reasons for judgment include a finding as to what was in the best interests of Baby D, whether the authorisation of the Court was required for the medical procedure(s) sought on Baby D’s behalf or whether the parents should have been able to legally consent and authorise the procedure(s) on the child’s behalf. In the course of the hearing other issues arose as to the role and responsibilities of various parties in the proceedings, including that of the Office of the Public Advocate. Those secondary issues have been addressed following the consideration of the primary issues in these reasons for judgment.
APPLICATIONS FOR FINAL ORDERS SOUGHT
On 24 December 2010 the parents filed an Initiating Application seeking a declaration from this Court that it is lawful and in the best interests of Baby D that a medical procedure known as extubation be performed on her and thereafter life prolonging treatment be withheld.
By their Amended Initiating Application filed 6 January 2011 the final order sought by the parents was for the extubation to be performed on Baby D and that thereafter life prolonging treatment be withheld.
By a Response to the Amended Initiating Application filed with the leave of the Court on 12 January 2011 the hospital sought the following final orders:
(i)that it is lawful for the parents of Baby D to request and give permission to staff of the respondent hospital to remove and not replace an endotracheal tube inserted in the airway of Baby D, this course of action being in Baby D’s best interests;
(ii)that is lawful for the parents of Baby D to request and give permission to staff of the respondent hospital to administer such sedation or other medication as is considered necessary by staff of the respondent hospital to relieve pain and distress exhibited by Baby D as a consequence of removal of or the absence of an endotracheal tube, this course of action being in Baby D’s best interest;
(iii)a declaration that neither of the courses of action identified in each of the preceding orders amount to a “special medical procedure”;
(iv)that in the alternative, and if the Court finds that either or both of the courses of action referred to in orders 1 and 2 above do amount to a “special medical procedure” then the Court authorise staff of the respondent hospital to take those courses of action.
By an amended form of order filed with the Court by leave at the time of its final submissions the respondent hospital identified two additional orders that it sought and they were:
3.That it is lawful for the parents of Baby D to request and give permission to staff of the Respondent Hospital to withhold life prolonging treatment from Baby D, this course of action being in Baby D’s best interests.
4.In the event that the parents of Baby D request the courses of action referred to in 1, 2 and 3 above, then it shall be lawful for the Respondent Hospital and its staff to:
4.1remove and not replace Baby D’s endotracheal tube; and
4.2provide palliative care to Baby D in the form of administering such medication as is considered necessary by staff of the Respondent Hospital to relieve pain or distress exhibited by Baby D as a consequence of the removal or absence of the endotracheal tube; and
4.3withhold life prolonging treatment from Baby D.
The Independent Children’s Lawyer (ICL) did not file a Response. In final submissions to the Court the ICL generally sought a form of order supportive of the parents and the hospital and that the ICL was satisfied was in the best interests of Baby D.
Upon being granted leave to participate in the first day of the hearing on an amicus curiae basis the Office of the Public Advocate (OPA) did not file a Response and likewise was then supportive of the orders sought by the parents, the hospital and the ICL. That position subsequently changed on the day after the hearing had concluded when Senior Counsel, with him Junior Counsel, were briefed to appear by the Principal Legal Officer of the OPA at a requested mention. The outcome and issues arising thereafter in the proceedings are subsequently considered in these reasons for judgment.
REPRESENTATION OF CHILD’S INTEREST
The Family Law Act 1975 (Cth) (‘the Act’) has been substantially amended to reflect the importance of independent representation of children’s interests and the role of the ICL.
Decisions in this Court that were handed down in the years prior to the commencement of the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth) were written without the current emphasis and substantial formal input of the ICL.
The representation of a child’s interest was previously governed by s 65 of the Act (as it then was). Section 65 formerly provided that:[1]
65.Where, in any proceedings under this Act in which the welfare of a child is relevant, it appears to the court that the child ought to be separately represented, the court may, of its own motion, or on the application of the child or of an organisation concerned with the welfare of children or of any other person, order that the child be separately represented, and the court may make such other orders as it considers necessary for the purpose of securing such separate representation.
[1]Family Law Act 1975 (Cth) as at 30 June 1993, including amendments up to Act No. 229 of 1992.
As distinct from the legislation that applied on 30 June 1993[2] or on 19 March 1996,[3] which formed the basis of earlier decisions of the Full Court that are discussed later in these reasons, the current legislation as now amended provides for the separate representation of a child’s interests in s 68L and s 68LA.
[2]Supra.
[3]Family Law Act 1975 (Cth) as at 19 March 1996, including amendments up to Act No. 167 of 1995.
Section 68L(2) provides for a court to order independent representation by a lawyer of the child’s interest, although the power is discretionary.
Section 68LA applies if an ICL is appointed and s 68LA(4)(a) stipulates that the ICL is not the child’s legal representative.
The ICL must form an independent view of what is in the best interests of the child and act at all times in the proceedings according to that best interest per s 68LA(2).
Specifically the duties of the ICL are recorded in s 68LA(5) which states that the lawyer for the child must:
(a)act impartially in dealing with the parties to the proceedings; and
.. .
(c)if a report or other document that relates to the child is to be used in the proceedings:
(i)analyse the report or other document to identify those matters in the report or other document that the Independent Children’s Lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii)ensure that those matters are properly drawn to the court’s attention; and
(d)endeavour to minimise the trauma to the child associated with the proceedings…
These are very substantial and very well defined powers encompassed within the role of the ICL.
In this case I am satisfied that the appointed ICL, both the solicitor appointed and Counsel briefed on behalf of the child’s interests, fully analysed all of the medical reports and opinions and reached an independent conclusion which aligned wholly with that of the parents and the hospital.
It is both timely and proper to reflect upon the substantially extended and very clearly defined role of the ICL in the context of the role undertaken by the amicus, by leave, in this hearing. This is a matter of some importance as at the time of earlier decisions of the Full Court that considered the powers and rights of the OPA in special medical procedure cases, the ICL had a narrower and more restricted basis of investigation.
COURT HEARINGS
On 24 December 2010 and as a matter of urgency the parents’ Application was listed before Cronin J and his Honour made orders:
§adjourning the further hearing to 7 January 2011 before me; and
§requesting that Baby D be separately represented by an independent lawyer appointed by Victoria Legal Aid pursuant to s 68L(2) of the Act.
It was subsequently organised by my Chambers for the matter to be mentioned earlier than the adjourned date, and on 4 January 2011 the matter was listed before me with Counsel appearing for the parents, and the ICL appearing to represent the interests of Baby D. At that hearing I requested that the hospital be formally served with all documents filed with the Court and that they appear and be represented at the scheduled hearing later that week.
On 7 January 2011 Senior Counsel appeared for the hospital and Counsel appeared for each of the parents and the ICL. Orders were pronounced for the purposes of listing the matter for hearing on 12 January 2011 and also stated that:
(a) the matter be known and referred to as Baby D;
(b)the names of the parents, the hospital, the doctors and medical specialists be anonymised;
(c)all reference to the court file number, Registry information and names and details of all legal representatives be suppressed.
In accordance with Rule 4.10 of the Family Law Rules 2004 (Cth) (‘the Rules’) I directed that a sealed copy of the Applications and supporting affidavits be served upon the relevant State welfare department (the Department) and otherwise the matter was adjourned for further pre-case mention before me on Monday 10 January 2011.
Upon service, the Department contacted this Court by letter dated 7 January 2011 and their principal solicitor advised that the Department would not seek to participate in the proceedings and would not be making any submissions on the various issues before the Court.
On 10 January 2011, at that further mention before me, Counsel for the parents and the ICL appeared and a solicitor represented the hospital. I ordered:
(a)that a sealed copy of the Amended Initiating Application and all supporting affidavits be served upon the OPA and that they be requested to advise my associate and the ICL if they wished to be heard and represented in the final hearing of these proceedings;
(b)that the medical professionals who had filed affidavits be identified only as Dr X and Dr Y;
(c)that the provider of the court transcript, Auscript, be directed at all times to ensure that the parents, Baby D, the hospital, the witnesses and the legal practitioners are not identified by name or position, but only as anonymised by the Court.
The OPA was required to be served pursuant to the Guidance and Protocol, Practice Direction No. 9 of 2004, (‘the Protocol’) applicable to all medical procedure applications for children in Victoria. That Protocol was entered into between the Family Court of Australia, Victoria Legal Aid and the OPA, and was supported by the Victorian Department of Human Services. However, the Protocol was directed only to the process of obtaining Court approval for a medical procedure for a child in Victoria, and in particular a child with intellectual disabilities.
The Guidelines and Protocol were expressed to:
(a) promote positive outcomes for children and young persons;
(b)promote the care, welfare and development of children and young persons;
(c)provide intending applicant/s and other interested parties with the opportunity to identify and discuss all relevant issues;
(d)assist in identifying, where appropriate, alternative options and strategies;
(e)encourage and support a cooperative and collaborative approach between the four participating organisations and medical and health professionals;
(f)ensure consistent and timely management of applications for a medical procedure for a child;
(g)ensure that a court hearing is of ‘last resort’, after all other options have been tested or considered and failed to or been assessed as unable to produce a satisfactory outcome;
(h)ensure that, if a matter proceeds to a court hearing, the Rules are followed and, in particular, all necessary evidence is available to the Court in compliance with Division 4.2.3 of the Rules.
Thereafter the Protocol deals with the role of the participants and the various options relating to dispute resolution and court hearings. The Protocol does not provide any right of appearance in a hearing to the OPA and primarily they are focused on pre-hearing support and discussions, and a careful consideration by all interested organisations of the suitability of the medical procedure, or alternatives available. There is no reference to or incorporation of the Protocol within the Rules.
On 11 January 2011 the OPA advised the ICL and the Court that they intended to be represented and to seek leave to appear and be heard as amicus curiae.
On the morning of the hearing the OPA elected to be represented by a senior manager. She had her instructions and sought leave to appear amicus curiae. That officer had prepared and handed to the Court a Notice of Address for Service. Thereafter, in the conduct of the proceedings, and with the leave of the Court, that officer participated in the cross examination of the two professional medical witnesses, made submissions to the Court and identified final orders and outcomes that she considered to be proper and in the best interests of Baby D. The hearing concluded.
I was then aware from disclosures made to the Court and proceedings in other matters before the Court that the officer had previously appeared, by leave or otherwise, for the OPA in other cases before judges of this Court.
I record that the following day, Thursday 13 January 2011, the
Principal Legal Officer of the OPA contacted my Chambers and requested that the proceedings be re-listed as a matter of urgency. I had the matter re-listed at 2.15p.m. on that day as requested. No applications were before the Court, though a letter from that legal officer at the OPA had been sent to the Registrar of the Family Court that morning and had been served upon all parties to this proceeding.
Senior Counsel appeared on behalf of the OPA at that hearing, as did Counsel for the parents, by telephone, Senior Counsel for the hospital, and Counsel for the ICL.
The Court was requested to order a full transcript of the proceedings of the earlier day and to otherwise structure a further Court timetable for written submissions on the substantive issues to be prepared and filed by the OPA, notwithstanding their earlier appearance by leave and involvement in the concluded proceedings and their support of the orders then sought by all parties.
I delivered an ex tempore judgment after Court hours and those reasons for judgment have now been published and I have not repeated the various reasons for then declining the further request of the OPA.[4] Those reasons can and should be read in the context of this judgment and the orders sought and made in the best interests of Baby D.
[4]See Re Baby D [2011] FamCA 14.
I listed the matter to deliver Orders of the Court on the substantive issues on 18 January 2011 at 12.00pm. Each of the parties were represented by Counsel, and Senior Counsel, and Junior Counsel appeared for the OPA. Upon request of the parties the matter was stood down for out of court discussions and subsequently the Court was advised that a consent arrangement had been reached for a further independent medical specialist to be engaged by the OPA, with the agreement of all other parties, to consult with the hospital and its medical specialists, examine Baby D and prepare an updated report for the Court, the hospital and the parents.
With the consent of all parties I then adjourned the further hearing of this matter to Tuesday 25 January 2011. I withheld delivering the final Orders of the Court and that situation was requested by all parties, and the amicus, and was the subject of agreement.
At that point of the proceedings I raised with Senior Counsel for the OPA and those instructing him, including the Public Advocate herself who was in the body of the Court, the jurisdictional basis upon which they were at this Court and in particular their relevant and applicable powers and duties pursuant to the Guardianship and Administration Act 1986 (Vic)[5] within the ambit of these Federal proceedings.
[5]Act No. 58 of 1986, version 74, in force from 28 October 2010.
After lengthy discussion between the Court and Senior Counsel and all other Counsel, I directed that written submissions as to the powers and duties of the OPA to be heard and participate in proceedings in this Court be filed within a specific short period, with replies from the parties to be also filed, and for the issues to be consolidated with the issues concerning Baby D and adjourned the matter to 25 January 2011.
I provided then to all parties and the amicus the transcript of evidence of Dr X and Dr Y, including their cross examination, from the hearing on 12 January 2011.
The written submissions of the Public Advocate were supplied on 21 January 2011. The written submissions of the respondent hospital were filed by leave of the Court at the recommencement of the Court hearing on 25 January 2011 and annexed to those submissions, and provided to the Court without objection from the parties or the amicus was a legal article.[6] I have read and evaluated each of the written submissions.
[6]Cooper, D., Willmott, L., White, B., ‘Interveners or Interferers: Intervention in Decisions to Withhold and Withdraw Life Sustaining Medical Treatment’ (2005) 27 Sydney Law Review 597.
Whilst ordered to do so neither the parents or the ICL, though their legal practitioners, filed any written legal submissions and each of them indicated to the Court that they were not instructed to further address those legal issues under consideration.
I have hereafter considered and commented upon the role of the OPA, its relevant and applicable powers and duties, the Protocol, its appearance before this Court on an amicus basis and the professional medical evidence which, by consent, it was permitted to adduce in this hearing.
AFFIDAVITS
The parents relied upon:
(a) the affidavit of the mother filed by leave on 24 December 2010;
(b)the affidavit of the father, and annexures, filed by leave on 24 December 2010;
(c)the further affidavits of each of the mother and father filed by leave on 12 January 2011.
The hospital relied upon:
(a) the affidavit of Dr X filed 7 January 2011; and
(b)the affidavit of Dr Y filed by leave of the Court on 10 January 2011, and which annexed diagnostic imaging reports dated 23 November 2010 and 16 December 2010 under the signature of Professor Z;
(c)the further affidavit of Dr Y filed by leave of the Court on 12 January 2011;
(d)the affidavit of Professor Z and the annexed Magnetic Resonance Imaging (‘MRI’) brain scans of Baby D.
The Public Advocate, as amicus, and with the consent of all parties relied upon:
(a)the affidavit of Dr W and his annexed report filed 25 January 2011.
The ICL did not present any additional evidence to the Court, but relied, and addressed the Court upon, all of the above evidence.
BACKGROUND FACTS
Baby D was a twin born at 27 weeks gestation in early August 2010 at the hospital. Both children required a long period of support in the neonatal intensive care unit with intubation and mechanical ventilation as a result of irregularity of breathing due to apnoea of prematurity.
The other twin has largely recovered and was in the special care nursery at the hospital but no longer required respiratory support.
The mother and father are the parents of Baby D. They are married and Baby D is a child of their marriage.
Baby D’s life was complicated by the development of an upper airway obstruction due to inflammation and narrowing of her larynx and the evidence before me was that situation was an uncommon but well recognised complication of prolonged endotracheal intubation. Several unsuccessful attempts were made to extubate Baby D and therefore a more formal examination of her airway was made by a medical specialist under anaesthesia in theatre and also while awake in neonatal nursery. Those findings then led to a further attempt being made to extubate Baby D with the aid of steroids to suppress inflammation.
Baby D had quite severe stridor and signs of significant airway obstruction. Initially the medical evidence indicated that her condition improved and the hospital and doctors were hopeful that as the inflammation subsided her symptoms would diminish in the days ahead. Unfortunately that positive outcome did not occur and her condition deteriorated approximately sixty hours after extubation and required the replacement of the endotracheal tube.
The evidence before me is that the replacement of the endotracheal tube proved to be an exceptionally difficult medical procedure. The laryngeal tissues of Baby D had become swollen and narrowed after the tube had been removed and the medical opinion was that this made it almost impossible to insert another tube. Her condition then deteriorated profoundly, necessitating prolonged resuscitation with cardiac compressions and adrenaline. Finally an endotracheal tube was inserted successfully after a delay of approximately 35 minutes.
After this event the medical specialists and the hospital were significantly concerned that Baby D may have suffered a major hypoxic injury to the brain. No seizures were subsequently observed but on clinical examination she displayed signs of mild encephalopathy with increased muscle tone and irritability. Ultrasound examination highlighted an unusual appearance, with abnormal echogenicity, in the occipital cortex on both sides of her brain.
A MRI was performed on 23 November 2010, six days after the initial event, and this showed abnormalities in the basal ganglia, internal capsules, rolandic tissues and occipital regions that were consistent with severe hypoxic ischaemic injury.
Baby D remained intubated to maintain patency on her airway. Otherwise she had no need for ongoing intensive care and support. She was able to breathe regularly, required no added oxygen and was stable from a cardiovascular perspective. Although her endotracheal tube remained connected to a mechanical ventilator, the medical evidence was that this was a prophylactic measure to avoid development of atelectasis in her lungs.
A second MRI was performed on 16 December 2010 for the purpose of evaluating the nature and extent of the brain injury. That imaging confirmed definite evidence of widespread and severe injury to the brain. That evidence was verbally reported to the Clinical Ethics Committee of the hospital by Professor Z, together with reports and assistance given them by both Dr X and Dr Y.
From the middle of November last year no further attempt has been made to electively remove Baby D’s endotracheal tube and thus the condition of her upper airway and the degree of airway obstruction has not been re-assessed. The evidence before me therefore was that there is uncertainty as to the degree of airway compromise and whether it has improved or deteriorated from that which pertained in mid November of last year.
Given the likely severity of the brain injury to Baby D the treating medical team at the hospital do not consider that the provision of ongoing intensive care support to be in the best interests of Baby D. Withdrawal of such support means the removal of the endotracheal tube and the consequences of that action remains uncertain.
CLINICAL ETHICS COMMITTEE OF THE HOSPITAL
Annexed to the affidavit of the father is a referral form dated 13 December 2010 where the treating medical specialist and Director of Newborn at the hospital prepared a detailed report and identified the nature of the ethical issues to be listed on the agenda and considered by the hospital’s Clinical Ethics Committee at its meeting on Friday 17 December 2010.
That report, which is in evidence, identified and explained the ethical issues surrounding any likely withdrawal of intensive care from Baby D after full and proper discussions with the family. If and when that decision was taken within the hospital, in active discussion with the parents, the intensive care would be withdrawn with the expectation that the basic bodily functions would be unable then to support life and that death would occur over a few hours in a peaceful and controlled process.
Baby D does have evidence of serious hypoxic ischaemic injury as shown on the imaging but it was identified that, in other key respects, her case differed from the many other cases that come before hospital and ethical staff. Dr Y, and his medical support team believed that there were or could be, on the facts of this case, existing ethical dilemmas when considering the possibility of withdrawal of care. Baby D had no evidence of compromise to her brain stem reflexes or her cardio respiratory control. She was not dependent on mechanical ventilation and did not require any vasoactive drugs. Her support was limited only to the endotracheal tube which was required to prevent the swelling of her laryngeal tissues and consequent airway obstruction.
The key ethical issues that were summarised for discussion and determination by the hospital’s Clinical Ethical Committee were stated to be:
(i) Baby D has no underlying irrecoverable life-threatening problem;
(ii)her survival is temporarily dependent on a simple plastic tube, her endotracheal tube;
(iii)if that tube is removed and airway obstruction becomes symptomatic she will make vigorous efforts to breathe and be likely to experience intense distress; and
(iv)administration of medication to relieve that distress would be expected to have a very direct and instrumental impact on whether she were to succumb or survive following the removal of her tube.
The question posed by Dr X in his capacity as the Medical Director for consideration by the hospital Ethics Committee was:
Whether it would be ethically reasonable and legally acceptable to remove Baby D’s endotracheal tube with the expectation that it would not be replaced in the event that life- threatening airway obstruction develops.
By a written response dated 23 December 2010, exhibited to the affidavit of the father, the Deputy Chair of the Clinical Ethics Committee for and on behalf of that Committee advised that, at its meeting on Friday 17 December 2010, they had considered the matter of Baby D and offered the following advice or opinion for consideration:
1)It is appropriate for Baby D’s parents to apply to the Family Court of Australia to obtain a declaration that it is lawful for Baby D to be extubated and for life-prolonging treatment to be withheld as it is in her best interests. The parents can also apply for a declaration that it is lawful for them to refuse any life-prolonging treatment on behalf of their daughter Baby D as that course would be in her best interests. The hospital will support such an application.
2)Pending a declaration from the Family Court of Australia, if Baby D’s endotracheal tube falls out, she is to be re-intubated.
3)It is an appropriate ethical response to anticipate that clinical management in the best interest of Baby D by the paediatric team would proceed as follows, provided a supporting declaration from the Family Court of Australia is granted:
Extubation of Baby D:
(i)If she breathes on her own, no further intervention is required for her airway management; or
(ii)If she develops respiratory distress and struggles to breathe or suffers respiratory collapse, she will be provided with comfort palliative care by way of medication; however life-prolonging treatment is to be withheld as it is in her best interests.
4)A tracheostomy will not be offered in this case as it would be clinically and ethically inappropriate to subject Baby D to intrusive painful treatment, as she has a very poor prognosis and quality of life.
In considering the opinion(s) of the Clinical Ethics Committee, please note the following important information:
§The advice is not intended to constitute clinical or legal advice and that it constitutes ethical advice only (in the event that the CEC believes that there are legal considerations that need to be taken into account, it will assist the staff member in obtaining this advice by way of facilitating discussions with the Corporate Counsel);
§The advice does not replace the need for application of clinical judgment in relation to the continued treatment of the patient; and
§Acting in accordance with the ethical advice does not guarantee that the practitioner has acted in accordance with legal requirements.
It is requested that upon resolution of this matter, feedback be provided to the Clinical Ethics Committee, by way of a letter, notifying of the outcome of the matter. This feedback will assist the Committee in the provision of opinions on future cases considered for case consultation.
What then followed was that the following day the parents urgently applied to this Court for leave to file and have heard their Initiating Application which was made returnable before Cronin J on 24 December 2010 late in the afternoon.
THE PARENTS’ EVIDENCE
The parents at all times had and continued to receive detailed information and advice from the hospital and the medical specialists. They recorded in each of their affidavits that they have accepted and relied upon such advice.
The position and instructions of the parents are expressed in paragraph 11 of the father’s most recent affidavit, filed 12 January 2011, endorsed by the mother which records that:
I am further convinced that it is in Baby D’s best interests for the medical procedures outlined in the letter from [the Deputy Chairman of the Clinical Ethics Committee], dated 23 December 2010, to be implemented.
His affidavit concluded with a request that the Court make the orders sought by the parents in his Amended Application filed 6 January 2011.
DR Y
Dr Y is a very experienced medical practitioner, currently registered and holding substantial professional qualifications and appointments. He is a Fellow of the Royal Australasian College of Physicians (Paediatrics and Child Health Division). He holds a senior position with the hospital and has overall responsibility for the conduct of the neonatal intensive care unit and the special care nursery at the hospital. He holds honorary university appointments.
He knows and has consulted with the parents and Baby D is a patient in his hospital unit.
On 13 December 2010 Dr Y prepared a substantial report on the case history, issues and medical health of Baby D. That report was primarily prepared for the purposes of the Clinical Ethics Committee of the hospital, which had listed for discussion on 17 December 2010 matters of future treatment and possible outcomes for Baby D, as referred to above.
Subsequently a further MRI of Baby D’s brain was conducted and that has been reviewed both by the hospital, Dr X, Dr Y and Professor Z who is a specialist radiologist. That report and their professional opinions were annexed to Dr Y’s affidavit and the medical specialists were in agreement on the opinions expressed by each other.
Dr Y’s affidavit summarised the condition of Baby D as at 7 January 2011. It stated that:
§she remained in the neonatal intensive care unit at the hospital;
§she is intubated and connected to a mechanical ventilator but is able to breathe spontaneously and without mechanical support. The ventilation is continued only to avoid progressive deterioration of her lung function that was said to be likely over time as a consequence of the presence of the endotracheal tube. Dr Y’s professional opinion was that the presence long term of such a tube can have a progressive adverse effect on lung function because it prevents the larynx from playing its normal role in breathing and leads to the development of atelectasis (closure of air sacs in the lung);
§her nutrition is being maintained by providing milk through a nasogastric tube;
§she is in an open cot;
§she is conscious and aware. She responds to touch, feels pain and cries. She is comforted by being held and cuddled;
§it is uncertain at the moment whether her vision has been impaired.
Baby D was said to have clear evidence of severe brain injury as shown on her MRI.
The evidence of the hospital and Dr Y is that the neonatal intensive care unit commonly cares for infants who have suffered severe brain injury. However, such infants normally display a number of factors that impact upon their capacity to survive without intensive care. They often have compromised brain stem function with severe consequences for their capacity to maintain circulatory and respiratory stability. They may often also have damage to other major systems of the body so that when intensive care is withdrawn from such an infant it is generally done on the expectation that the basic functions of the brain, or of other major organ systems of the body, will be unable to support the child’s life and death would likely follow.
Baby D however, unlike so many other infants that have suffered severe brain injury, appears to have unimpaired brain stem function. The evidence of Dr Y is that she does not appear to have any compromise to the function of her other major organ systems. Her dependence upon intensive care support was limited to the need for an endotracheal tube.
The hospital has found Baby D to have been noticeably more irritable and harder to settle since the hypoxic event of mid November of last year. Since then no further attempts have been made to electively remove her endotracheal tube and the condition of her upper airway and the degree of airway obstruction has not been re-assessed. Thus it was somewhat unclear to Dr Y whether her degree of airway compromise is better, worse or the same as that which pertained in mid November. There have however been several occasions recorded by the hospital since that date when the endotracheal tube has needed to be replaced because it accidently or spontaneously dislodged. On each of those occasions the tube has been able to be replaced immediately by hospital staff and no difficulty had been encountered with its re-insertion.
The affidavit evidence of Dr Y was that such episodes of re-insertion which have been straightforward cannot be taken as an indication that the problem of the narrowing of the airway of Baby D has resolved as re-insertion of the tube is most usually performed immediately when it is discovered and therefore insufficient time had passed for the airway to close or to have become significantly compromised.
The evidence of Dr Y was that the removal of the endotracheal tube is the most efficient means to ascertain whether there remained potentially present a significant obstruction of her airway. His opinion was that the presence of the tube placing pressure upon the lining of the airway may, to an extent, limit the inflammatory swelling which would otherwise develop. It may therefore be found to be several hours following removal of such tube before the severity of the obstruction is clearly evident, if at all. The evidence before the Court was that visual inspection of the airway with a laryngoscope may be a possible alternative means of assessment but that is both difficult and poorly tolerated in an awake infant and would provide relatively little useful information upon which severity would be judged. More information would be gained by an examination of the airway under anaesthetic but the value of such investigation is limited by the fact that the swelling of the tissues may not have had time to develop in that intervening period.
Dr Y’s evidence canvassed the alternative medical option of the performance of a tracheostomy. His opinion however was that, with the severity of her brain injury, such an operation would not be in her best interests and would subject her to a significant surgical procedure to establish a secure airway and ensure her long term survival. Dr Y expressed his opinion that he, and the hospital, would not normally recommend such an intervention in the case of an infant that has suffered profound injury to the brain unless it was the firmly stated intention of the family and their express wish for their child to survive regardless of the gravity of the prognosis.
In paragraph 22 of his affidavit Dr Y carefully highlighted the dilemma confronting the hospital, the medical staff and the parents in deciding whether to remove and then not replace Baby D’s endotracheal tube. That dilemma was that if the airway obstruction developed the only way that the distress and suffering of Baby D would be alleviated would be to suppress her drive to breathe. That is in a palliative care setting where depression of breathing is a well accepted “double effect” of sedation with medication such as morphine administered to relieve pain and distress.
Dr Y highlighted what was so unusual in this case was that the source of distress to Baby D would be brought about by her intense desire to breathe in the presence of an obstructed airway and thus the relief and care would diminish her desire to breathe. The outcome of such palliative care to relieve her distress may be to suppress her breathing to the point that her life succumbs.
Dr Y concluded in the final paragraph of that first affidavit that he was, all matters carefully considered, prepared to act in accordance with the wishes of the parents, subject to the approval of the Court, to remove the endotracheal tube, and if Baby D then were to suffer distress and significant and ongoing breathing difficulties, to then administer palliative medication as required to relieve her distress. That is an extremely important fact and outcome which I wholly accept was reached by him after very careful reflection and consideration upon all possible options, with the background of his vast experience, and decided upon in the best interests of Baby D.
FURTHER AFFIDAVIT OF DR Y
By leave of the Court Dr Y filed a further updated affidavit which was prepared with the background both of his extensive and specialist medical training and position and his appointment to a State Hospitals’ Neonatal Advisory Group.
Dr Y further advised the Court, in paragraph 14 of his second affidavit that:
14.The death of children in hospitals in Victoria is monitored by the Consultative Council for Obstetric and Paediatric Mortality and Morbidity… [This Council is established] by statute and is operated under the auspices of the Department of Health to look into the circumstances of individual obstetric and paediatric deaths. [Dr Y is] a current member of [that Council].
In that affidavit Dr Y deposed to, in more detail, his extensive paediatric and neonatal training and work experience. He has worked at the hospital as a specialist neonatologist for over two decades and as its Director for the past decade.
Dr Y deposed that it is not uncommon in the neonatal nursery at the hospital to provide palliative care to infants in a setting where their prognosis is poor and a decision had been reached with parents to cease active treatment of intervention.
The neonatal nursery at the hospital provides both intensive and special care services for newborns. It has a capacity of … beds designated for ventilator intensive care providing mechanical respiratory support for infants with breathing difficulties.
As background and factual information to the admissions in the neonatal nursery at the hospital, Dr Y advised that some 1200 infants are admitted each year of whom 400 require a period of ventilator intensive care. His evidence was that:
On average, amongst the babies that are admitted to the nursery, there are about 2 - 3 deaths each month. The total number of deaths in 2009 was 22 and in 2010 it was 33. I estimate that at least half of these deaths occurred in a setting in which a decision to withdraw intensive care or withhold further intervention had been reached after careful discussion with the parents.
Dr Y was a founding member of, and is a regular participant in, the Neonatal Advisory Group. The group is a partnership of the hospital and three other major hospitals who are predominantly involved with intensive care and tertiary perinatal services. As a further background to his significant experience and qualifications, Dr Y and the Advisory Group of the four major hospitals meet monthly to discuss common issues involving the care and treatment of, and advice for, infants requiring intensive and special care services.
Dr Y concluded by deposing that:
17.In Victoria, my experience is that neonatologists operate on the basis that parents generally have the authority to make end of life decisions in respect of very sick infants. In the neonatal nursery, decisions about withdrawal of treatment or withholding treatment, and initiation of palliative care, are generally made in a setting in which the infant is unlikely to survive or the child’s quality of life is expected to be poor. Such decisions are not normally regarded as being decisions that require permission from a Court.
18.Our Corporate Counsel has informed me that the term ‘special medical procedure’ includes, for example, invasive surgery such as gender reassignment or sterilisation, a situation where a child might be a donor for transplantation, or treatment of an experimental nature, and also informed me that in each of these situations the Court’s permission to proceed is required.
ORAL EVIDENCE AND CROSS EXAMINATION OF DR Y
Dr Y was requested by the parties to be available to give oral evidence to the Court and to answer questions under cross examination. He therefore attended at Court, for the purpose of assisting the Court with further evidence and he remained for the duration of the proceedings.
Dr Y was asked by Senior Counsel for the hospital that, if and when the endotracheal tube of Baby D is removed, will she have a desire to breath. His answer that was:
She certainly will have a very strong desire to breathe, although a great deal of her brain has been damaged. Her brainstem which drives breathing appears to be unaffected by what has happened to them. She will have a very intense desire to breathe and she is able now to breathe without the aid of any mechanical support, other than the endotracheal tube. Although she is connected to a ventilator, that is not necessary in terms of maintaining regularity of her breathing.
Dr Y said that he did not think it totally unlikely that Baby D could manage without her tube. He thought it unlikely that she would have no symptoms of pain and distress at all. The palliative care would be required to relieve such symptoms and the preferred drug would be morphine. Dr Y’s evidence, in response to a question from the ICL, was that:
[M]orphine is one of the most effective agents in that setting and it is well recognised and accepted that in achieving the primary objective of relieving pain and distress a secondary consequence of the morphine may be to depress breathing and a further consequence of that may be to shorten further the patient’s life.
With that explanation Dr Y identified the particular dilemma in this case confronting the medical practitioners and the hospital. It was said that:
The dilemma that I think we may face with Baby D is that the source - the very source of her distress will be likely to be that desire to breathe. And whilst one would hope in that setting that it is possible to give her sufficient morphine to relieve the distress, but not to remove her desire to breathe, it is also possible in that setting that the two may prove to be inseparable. That the distress - the relief of the distress and the relief of the desire to breathe are inseparable and that I may not… [be] able to relieve her distress without depressing her breathing… [T]hat is the dilemma.
Subsequently, and in answer to a question from the officer of the OPA, Dr Y deposed that:
The circumstances that are unusual are a constellation of circumstances. It would - there would be many other occasions where the brain stem may be functioning reasonably in an infant in whom we’re withdrawing care, but in whom, for example, there is no prospect of the heart or lungs recovering. So it is not that on its own. It is the particular collection of circumstances that [Baby D] has a well preserved brain stem function, but she is in very unusual circumstances, where we’re having to contemplate withdrawal of care in an infant who will breathe, but who is going to be breathing with a very obstructed airway… [I]t’s a circumstance where the very withdrawal of the tube will result in significant stress to the infant.
Dr Y further explained, upon this constellation of circumstances that:
The thing which for me is unique, that is, that that constellation of factors puts me in a place that I am uncomfortable, that I don’t know where I sit in terms of the - it comes back to the morphine and the double effect versus the single effect of morphine.
He continued and further explained that:
The challenge and the thing that is making me feel gray about this and where I - and where the boundaries lie is the fact that it could be that the only way - it may not be but it could be that in this case the only way to relieve [Baby D’s] distress is with - is to relieve her of the - diminish her desire to breathe. But the relief of distress was the primary object that has become inseparable from diminishing the drive to breathe. Normally the diminishing of the drive to breathe is an acceptable, indirect by product of the relief of distress.
There was reference in the earlier affidavits of Dr Y to the tube being spontaneously dislodged on prior occasions and by explanation the witness said that:
It is an inevitable occurrence on occasions in infants who are intubated. The tube is held in place with tapes to the - with tapes to the cheeks and those tapes can come loose and the child may, by movement, cause the tube then to become dislodged.
Dr Y was asked about the effect or impact of a tracheostomy and his evidence was that such an operation was not the appropriate treatment for Baby D and that was an opinion shared by his medical colleagues. He highlighted the concern and difficulty of such an operation by stating that:
A tracheostomy is a surgical operation. It is, like all operations, a painful thing during the recovery from that operation. But a tracheostomy also presents an infant and an older child with added difficulties. It is impossible to cough effectively with a tracheostomy so secretions tend to be retained in the chest. The breathing is often rattling with those secretions. Because the child can’t cough those secretions out effectively they will need to be actively suctioned, a catheter placed through the tracheostomy and into the trachea. And such an appliance is meant to draw secretions out, which is quite an unpleasant procedure. That needs to be done multiple times a day in an infant with a tracheostomy.
When asked about his earlier report to the Clinical Ethics Committee Dr Y highlighted that the updated MRI was performed after the date of the preparation of his report, though the Ethics Committee had been orally advised of that outcome. Dr Y said that, with the benefit of time and the second MRI, his report would have been drafted in different terms and in stronger language but nevertheless would still have centred on the difficulty and dilemma confronting the medical professionals in their treatment of Baby D.
Specifically addressing the results of that second MRI and what was shown in that imaging Dr Y deposed that:
It is not so much the damage becomes greater. I mean, the source of the damage was hypoxia and that was done on 17 November. What happens over time is that the visible signs of that, of the damage that has been done, progressively evolve in changing appearances on investigations like an MRI. So I think that it is not that there was ongoing further injury to the brain, it is simply that the signs and physical appearance of that injury on the MRI became more conclusive.
Significantly the professional opinion of this witness was that the removal of the endotracheal tube was not a medical procedure. His evidence was that it occurred within the hospital on multiple occasions in each year and specifically and relevantly he said that:
Removal of an endotracheal tube as part of the withdrawal of care is thankfully not an everyday event but as I have indicated in my affidavit that it is not an uncommon circumstance though it be on multiple occasions each year that we did it.
When asked whether the administration of palliative care and assistance was a medical procedure the witness replied that it was not.
In the context of this application to the Court and the orders sought by the hospital and in his consideration of what is a special medical procedure Dr Y expressed his personal, but medically qualified opinion, that:
[I]t would be extraordinarily unfortunate if we needed to bring problems to a setting like this [a court] on a regular basis.
When asked if the major medical procedure for Baby D related to treatment for a bodily malfunction or disease, the evidence of Dr Y was that “Baby D has a very major organ that is malfunctioning”. He said that her airway problem was “undoubtedly a bodily malfunction” and that what had happened to her brain had left her with “a major bodily malfunction”.
That evidence is directly relevant and I have carefully considered it in the context of the definition of a “medical procedure application” in the Dictionary to the Rules. The Dictionary forms part of those Rules. The definition of that phrase is that it means:
[A]n Initiating Application (Family Law) seeking an order authorising a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease.
The Dictionary highlights, as an example, that a procedure for sterilising or removing the child’s reproductive organs is a major medical procedure.
DR X
Dr X is a specialist paediatric neurologist and clinical geneticist. He is a Fellow of the Royal Australasian Collage of Physicians in the specialities of paediatrics, neurology and clinical genetics. He is a currently registered medical practitioner with specialist qualifications and is a part time Director of Paediatric Neurology at the hospital.
Dr X holds a position as a senior lecturer in the Department of Paediatrics and the Faculty of Medicine at a major university and is actively engaged in paediatric research and has national and international funding to pursue further studies in cerebral palsy research.
He is familiar with Baby D and was asked to provide an opinion on her current neurological condition, diagnosis and likely prognosis.
Dr X performed clinical examinations on Baby D on 15 December 2010 and 6 January 2011 and has reviewed both of her MRI scans.
In his opinion Baby D has clinical signs of increased tone affecting her legs and arms bilaterally. Specifically she has an adducted thumb on the right which extends easily with passive movement. She has trapezius reflexes present. She has increased tone in her right leg and eight beats of clonus on the left. Her reflexes are brisk and spread from ankle to knee jerks to the contralateral adductor group of muscles. Dr X holds concerns that the vision of Baby D is significantly impaired. His evidence is that she has a squint but that he is unable to obtain fixation with gaze.
A more recent reference to the decision of Re Michael was in Church v S Overton,[163] a decision of Benjamin J where his Honour observed that:[164]
62.An example of the court’s approach to overriding a joint parental decision about a child is Re Michael (1994) FLC 92-471. Michael was 12 years old and suffered from a serious cardiac condition. His parents appealed Treyvaud J’s decision enabling the Public Advocate to seek a declaration that he be authorised to consent to a medical procedure for Michael. Whilst a Full Court of Nicholson CJ, Fogarty and Joske JJ were focussed on the standing of the Public Advocate, during the course of the judgment their Honours made it clear that it was for the Public Advocate to establish by way of medical evidence that the parent’s decision was unjustified (at page 80, 893).
63.If a court is satisfied that an approach to the upbringing of a child by a parent or parents in whatever way is contrary to that child’s best interests, then the court should interfere by putting in place appropriate orders. In the absence of substantive issues as to the child’s best interests, it is not the role of a court to peer over the shoulders of functional parents and second guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful and thoughtful manner and consider whether a better approach is to make no order at all.
[163](2008) 40 Fam LR 357; [2008] Fam CA 952.
[164](2008) 40 Fam LR 357 at [62] to [63].
OVERVIEW OF THE ROLES OF THE AMICUS
The decision of the Full Court of the Family Court in Re Michael, and as endorsed by a slightly differently constituted Full Court in P & P is, of course, binding upon a single judge of this Court on that identical issue and I have recognised and accepted that fact.
I again observe that it was unfortunate that these reported cases were not identified and argued in this hearing but that perhaps is now somewhat academic in this particular case as the OPA was present at and actively involved in all hearings, including the calling of its expert evidence.
However, it may now be an appropriate time for this very significant (and in this case somewhat concerning) issue of the continuation of the Protocol and its benefits, if any, to children in this Court and any role to be played by the OPA to be reconsidered, particularly having regard to the many significant changes implemented since 1995 and including:
·The substantially redrawn Part VII of the Act and the current focus upon parental responsibility established in that Part;
·The strong and developing acceptance of the rights, duties and obligations of parents;
·The increased role, importance and professional standing of the ICL;
·The nomination of the prescribed child welfare authority (in Victoria the Department of Human Services) in r 4.10 of the Rules for service of all medical procedure applications;
·State Legislation enacted since the revision of the Protocol including the Children Youth and Families Act 2005 (Vic), the Equal Opportunity Act 1995 (Vic), and the Charter of Human Rights and Responsibilities Act2006 (Vic);
·The emphasis on the best interests of the child pursuant to Part VII in the context of the 2006 amendments to the Act;
·The State (only) based powers and jurisdiction of the OPA pursuant to the Guardianship and Administration Act 1986 (Vic);
·The public interest in the just and timely resolution of cases before the Court at a cost reasonable to the parties;
·The increasing recognition of international instruments in judgments of this Court, particularly the United Nations Convention of the Rights of the Child;[165]
·The s 4 definition of “major long-term issues” and the parental responsibility for the health of a child provided for in that section.
[165]See, for example, the discussion in Re Alex (2009) 42 Fam LR 645 at [178] to [185].
In the absence of any appeal in this case on this subsidiary issue (and in respect of which I have pronounced no orders) the role of the OPA and the continuance or variation of the Protocol may now be best dealt with by informed discussion between the Chief Justice of this Court, the OPA and other interested or affected groups or persons. My views are perhaps clear but I leave any decision on these matters to others and as such these issues remain open to reflection and debate.
I certify that the preceding three hundred and fifteen (315) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 16 March 2011.
Legal Associate:
Date: 16 March 2011