Re: Baby R (Life Support) - [2015] FamCA 449

FAMILY COURT OF AUSTRALIA

RE: BABY R (LIFE SUPPORT)

[2015] FamCA 449

FAMILY LAW – CHILDREN – Where consent orders were made for the mother and the father to exercise their parental authority to direct the hospital to discontinue life support for the child.

Family Law Act 1975 (Cth)

Re Baby A [2008] FamCA 417
Re: Baby D (No 2) (2011) 45 Fam LR
ReSean and Russell (Special medical procedures) [2010] FamCA 948

APPLICANT:

The Father

FIRST RESPONDENT:

The Mother

SECOND RESPONDENT:

Z Hospital

FILE NUMBER:

MLC

4397

2015

DATE DELIVERED:

22 May 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ

HEARING DATE:

19, 20 and 22 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Robinson

SOLICITOR FOR THE APPLICANT:

Nicholes Family Law

COUNSEL FOR THE FIRST RESPONDENT:

Ms Harris

SOLICITOR FOR THE FIRST RESPONDENT:

Women’s Legal Service Victoria

COUNSEL FOR THE SECOND RESPONDENT:

Dr Keeling

SOLICITOR FOR THE SECOND RESPONDENT:

Health Legal

Orders

(As amended pursuant to Rule 17.02 of the Family Law Rules 2004 on 28 May 2015)

UPON the matter coming before the Court with Mr Robinson appearing for the applicant, Ms Harris appearing for the first respondent and Dr Keeling appearing for the second respondent,

IT IS NOTED THAT:

The Applicant Father and the First Respondent Mother have reached agreement that life support be withdrawn for Baby R (the child) born …May ~~2013~~ 2015.

IT IS ORDERED BY CONSENT:

The Father and the Mother, in the exercise of their parental authority, hereby authorise the Second Respondent Z Hospital by its Board of Directors, servants and agents, and any employees and other doctors and nurses involved in the care of the child to discontinue life support, cease treatment of the child and provide reasonable measures for the relief of the child’s pain, suffering and discomfort;
Without admission, all parties, by themselves, their servants and agents, be and are hereby restrained by injunction from denigrating the other, including by publication on social media, and shall use their best endeavours to ensure that any denigrating material or comments are removed, and to discourage friends and family members from such denigration;
Both parents, by themselves, their servants and agents be and are hereby restrained by injunction from denying entry or access to the funeral of any person, or attempting to do so;
Liberty to apply to all parties in relation to matters concerning funeral arrangements for the child; and
Otherwise the father’s application and mother’s response are dismissed.

IT IS FURTHER NOTED BY THE COURT THAT:

The parents have agreed the father shall read a poem at the funeral and they shall agree on the words for the headstone for the child’s grave, and otherwise the mother shall arrange the funeral dates, including the appointment of a funeral director, and shall keep the father advised at all times.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Baby R (Life support) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4397 of 2015

The Father

Applicant

And

The Mother

First Respondent

And

Z Hospital

Second Respondent

REASONS FOR JUDGMENT

In May 2015, the Mother gave birth to a baby girl, Baby R. Baby R was born by emergency caesarean and was 25 weeks and four days gestation at birth; she weighed 728 grams. The pregnancy was complicated by spontaneous onset of preterm labour, which resulted in the mother initially attending rural Hospital A and being rapidly transferred to rural Hospital B. She was then transferred to Z Hospital in Melbourne.
There was a further complication in that the baby was known to be a footling breech presentation. The decision was made to proceed to emergency caesarean section, and shortly after midnight Baby R was born with a difficult and prolonged breech extraction. According to the report of Dr C, consultant neonatal specialist at Z Hospital and clinical director of the department of paediatrics, she was, and I quote:
… born in poor condition with a heart rate less than 60 beats/min (bradycardic) and with no respiratory effort. She required external cardiac massage (ECM) soon after birth and breathing support – initially with mask breaths with rapid progression to endotracheal intubation and breaths administered via the endotracheal tube…
(affidavit of Dr C, filed 19 May 2015)
Baby R was then transferred to the neonatal intensive care unit in the Hospital and, thereafter, required:
… considerable and mechanical respiratory support with a ventilator and was administered surfactant via the ETT (which assists immature lung function). In addition, umbilical lines (arterial and venous) were inserted without delay and fluid therapy instituted. An Xray was performed to ensure that the ETT and lines were correctly positioned. [Baby R] required blood pressure support with intravenous infusion of inotrope medication and was also given intravenous (IV) antibiotics. There was extensive bruising of her legs/arms and truck consistent with the footling breach presentation and delivery.
(affidavit of Dr C, filed 19 May 2015)
The following day, when she was approximately 34 hours old, Baby R suffered:
… a severe, acute clinical deterioration with associated severe metabolic acidosis on her arterial blood gas analysis. In addition, she had developed sudden severe anaemia (haemoglobin level of 54). She required extensive resuscitation, including packed red blood cell transfusion and IV fluid volume expansion and she was changed from “conventional” ventilation to high frequency oscillatory ventilation (HFOV). An emergency cranial ultrasound was performed at that time which demonstrated bilateral grade 3 Intraventricular Haemorrhages (IVHs) in her brain.
(affidavit of Dr C, filed 19 May 2015)
Baby R’s parents were previously in a relationship but the initiating application of the Father indicates that they separated in April 2015. The father is aged 24 and the mother is aged 23.
Dr F, Baby R’s treading neonatal consultant doctor, counselled the mother and the father with regard to Baby R’s deterioration, in particular, the effect of the haemorrhages in her brain. Dr C asserts at a meeting on … May 2015:
… it was made clear that [Baby R] was very unwell and the presence of these intracerebral bleeds would result in a significantly increased risk of long-term neurodevelopmental problems for [Baby R].
(affidavit of Dr C, filed 19 May 2015)
Dr C also deposed that:
… [Baby R] remained critically ill and at around 48 hours of life had further deterioration with the development of pulmonary haemorrhage which required further resuscitation with red cell transfusion and plasma and ongoing aggressive intensive care support, including HFOV.
On … a repeat cranial [ultrasound] showed the ongoing presence of grade 3 IVH bilaterally in [Baby R’s] brain, but in addition there had also been the development of significant bleeding into her brain tissue on the right (a grade 4 IVH).
In light of these concerns, an independent opinion was sought from Dr [H], Director of NICU, [X Hospital]. Dr [H] is a leading expert in the field of neonatal neurology. His opinion was in keeping with the advice given by the medical team at the [[the] Hospital] and the chance of an outcome for [Baby R] “other than severe disability in the long-term is zero.”
(affidavit of Dr C, filed 19 May 2015)
Dr C further opined that:
In view of [Baby R’s] extreme prematurity, poor condition at birth and subsequent acute episodes of deterioration with the presence of right grade 4 cerebral bleeding and bilateral grade 3 IVHs her mother … and father … were counselled regarding the extremely grave long-term prognosis with respect to development and disability should [Baby R] survive. On this basis, [the mother and father] were counselled that cessation of intensive care treatment would be appropriate and [the mother] was in agreement with this. [The father], however, felt that he could not agree to this.
Further counselling and information regarding disability and care-needs was undertaken by Dr [F], along with Dr [Y] (neonatal Consultant and [[Z] Hospital]) on the … afternoon (… May). [The father] was also advised that he would need to seek legal assistance if he wished to contest the plan to cease intensive care treatment.
A further meeting was arranged for [the following] morning, … with Dr [F], Dr [Y], [the mother and the father]. At that meeting it was made clear that [the mother] wished for intensive care treatment on [Baby R] be ceased with [the father] indicating that he could not make that decision but understood the gravity of [Baby R’s] condition and agreed to allow this to proceed.
(affidavit of Dr C, filed 19 May 2015)
Arrangements were then made to cease intensive care on … May 2015. But on the preceding day, the father’s partner contacted the hospital and indicated that the father wanted a second opinion. The father indicated that he would not allow of withdrawal of care to take place as planned.
As a result of the father’s position, the hospital decided not to cease Baby R’s intensive care treatment but to pursue further discussion with the parents and to ensure that the father had “the opportunity to explore his legal options”. This, the father did and he filed an application on 19 May 2015 seeking interim orders which I will set out orders from 1 to 5:
1.That all times be abridged to enable this Application to be heard on an urgent basis.
2.That until further order, [Z Hospital] by its Board of Directors, servants and agents, employees and any other doctor, nurse and/or treating medical practitioner involved in the care of the child [Baby R] born … May 2015 (“the child”) be and are hereby restrained from discontinuing life support or otherwise ceasing treatment of the child.
3.That until further order, [Z Hospital] by its Board of Directors, servants and agents, employees perform all treatment necessary to preserve the health and wellbeing of the child including but not limited to administering life support.
4.That until further order, the Father have sole parental responsibility for the child.
5.Such further and other Orders as deemed appropriate by this Honourable Court.
The father sought final orders in the same terms as Orders 2, 3, 4 and 5 and a further order that Baby R live with him. The mother and the hospital, as first and second respondents, opposed the father’s application. The basis of the father’s application, as set out in paragraph 10 of his affidavit filed on 19 May, was expressed as follows:
10.After having the opportunity to consider the situation, I do not agree that the withdrawal of [Baby R’s] life support is the most appropriate course of action. I seek that [Baby R’s] life support be continued so that she may be given the opportunity to survive if she can. I seek that my daughter be given the best possible chance of survival. I also consider it premature to discontinue her life support whilst so may details of her future health prospects remain uncertain.
Having heard submissions from counsel for the father on 19 May, it will be a fair summary to say that the father’s position was that the decision being made was premature.
Although there was short service, the hospital and the mother were served and represented at the hearing. Dr Keeling appeared for the hospital and Ms Harris appeared for the mother. No one took issue with short service of the application.
Evidence was provided on behalf of Z Hospital by Dr C and Dr F. Dr C, as stated above, is a consultant neonatal specialist and a fellow of the Royal Australian College of Physicians and a member of the Royal College of Paediatrics and Child Health (UK). He has been in a post at Z Hospital since December 1997 and has had over 20 years’ experience as fully trained consultant neonatologist. He is the Clinical Director of the Department of Paediatrics and has been involved in some of the clinical treatment during Baby R’s time in the neonatal intensive care unit.
The consultants mainly in charge of Baby R’s care have been Dr F and Dr Y. Dr F also filed an affidavit on 19 May 2015.
A letter from Associate Professor H for X Hospital was handed up without objection during the hearing and marked for identification as exhibit 1. Dr H’s opinion was as a second opinion external to the hospital.
In summary, as counsel for the hospital put it, at the time when the matter initially came before me, Baby R was then in neonatal intensive care intubated on a mechanical ventilator, on morphine, having needles on a regular basis and was agitated at times.
Both the doctors indicated in their affidavits that the medical team involved in Baby R’s care considered that the cessation of ongoing intensive care treatment was the most appropriate course of action and that, given that she was continuing to suffer, cessation of treatment as soon as possible was in her best interests.
It was acknowledged that Dr H did not physically examine Baby R but was provided with all the clinical details regarding her birth and subsequent history, as well as copies of the scans.
Dr H opined, in summary, that with all of the risks identified in the reports and scans, the chances of Baby R having a normal neurodevelopmental outcome were approaching zero. In this clinical context, he opined redirection of intensive care to a palliative approach would be reasonable.
The father was aware of these prognoses but it was his submission through counsel that it was premature to make a decision at that point. However, he did not, at that point, produce any further evidence to suggest a passage of time itself would make any difference to Baby R’s present situation or to her short or long-term prognosis.
Counsel for the father indicated at the hearing on 19 May that the father wished to obtain another medical opinion and sought an adjournment of three days for this to happen. That was opposed by both the mother and hospital who pointed to the ongoing suffering of Baby R and that the fact that the father had known, since at least the previous Saturday, that he wanted to get another opinion and could have done so. However, in the circumstances, I adjourned the matter for 24 hours to enable him to obtain another opinion.
After that short adjournment, an arrangement was made by the father to consult a further neonatal specialist and I adjourned the matter again for a short period so that the father could meet with the specialist at the hospital yesterday (21 May 2015) to go through the various test results and scans and reports in relation to Baby R.
Following that opportunity, the father reached a conclusion that, as the mother had already done, that life support for Baby R should be ceased and, as a result of that, I must make orders by consent today.
The parties agreed at the hearing that the court had jurisdiction to make the orders sought pursuant to s 67ZC of the Family Law Act1975 (Cth) (“the Act”), sometimes referred to as the welfare power, and/or s 64B as a parenting order. The power to be exercised in such circumstances is not without complexity. In ReSean and Russell (Special medical procedures) [2010] FamCA 948 Murphy J said:
67.It was recognised in Marion’s Case that there is an “unclear dividing line” between cases which must be authorised by a court and those which may not. It is by no means fanciful that parents may seek to have the court give approval (or disapproval) to a decision which falls within the limits of their parental responsibility but over which they have agonised and may be ambivalent.
68.Equally, at or near this “unclear dividing line” legitimate doubt might surround who may authorise a procedure; doctors can legitimately claim to need certainty when the consequences of proceeding in the absence of proper authority are potentially very severe.
As Murphy J also noted:
84.Where a decision falls properly within the ambit of parental responsibility, the authorisation or consent to a procedure is a parental decision. In saying that, I do not fail to recognise that the process of decision-making (likely, in many cases to involve a series of separate decisions) is, of course, exquisitely difficult and, in many cases, likely to involve much pain and proper prevarication.
85.As observed by the High Court, the immediate interests of parents may in some cases conflict with the long-term interests of children currently unable to speak or decide meaningfully for themselves. So, too, the difficult decisions involved are likely to involve the intersection of a number of moral, ethical and clinical dilemmas and decisions for doctors as well as parents.
Murphy J also said, with which I agree:
91.In my view, the law should tread very lightly in seeking to intrude in, or impose itself upon, those decisions. It would in my respectful view be sad indeed if the courtroom was to replace a caring, holistic environment within which approach by parents and doctors alike could deal with the (admittedly extremely difficult) medical and other decisions that need to be made.
See also Re: Baby D (No 2) (2011) 45 Fam LR 313 per Young J.
In this case, the parents were initially in conflict over what course should be taken. Both came to that decision believing their decision to be in the best interests of Baby R. The question of whether this falls within the scope of parental responsibility can be answered by observing that were the parents not in dispute then they would have made a decision in concert with the medical team to assess life support. They would regard that decision, as they now have, and I agree, as falling within their parental responsibility and they have now reached that consensus.
Thus, the power to be exercised, in my view, in this case is the power to make parenting orders under s 64B. Section 64B sets out the matters with which a parenting order may deal. Relevantly it says at 64B(2)(i):
any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
As this decision is within the parental responsibility of the parents, as I have indicated, in exercising the power the court would not be enlarging any powers of parental responsibility. Section 64B(2)(i), in my view, gives the court power to make the orders sought.
There being no order for equal shared parental responsibility being considered pursuant to s 61DA, there is no need to engage with s 65DAA. The decision in this case is to be determined by what is in the best interests of Baby R (s 60CA) and determining what is her best interests, the primary considerations are set out in s 60CC(2). Importantly, they include the need to protect the child from physical or psychological harm. Now both parents agree that that is best achieved by the cessation of life support.
Additional considerations are set out in section 60CC of the Act. Those not relevant I do not intend to detail. The facts of this case, while serious and crucial, are of limited compass and the provisions of ss 60CC(i) and (m) apply, in my view.
Neither parent, in my view, can be criticised for the attitude to this difficult decision that they have each adopted. It is true that the mother reached her decision before the father did. However, caution should be exercised in criticising the father. He is not objective in this exercise and he is young and without the wisdom of life experience. But I note that this decision would have been at least as, if not more, difficult for the mother who gave birth to Baby R. Her courage in this situation should not be overlooked.
The question now, the parents having reached agreement, is whether on the evidence presented it is in Baby R’s best interests for the orders sought by the parents and the hospital to be made and, in particular, the decision to authorise the hospital to cease life support for Baby R.

As Dessau J, as she then was, said in Re Baby A [2008] FamCA 417 “[d]eciding from a courtroom what is in any child's best interests is always an exquisitely difficult task.”
Fortunately, the parents have, themselves, been able to make a decision about their child.
The evidence, which I need not repeat – because I have already set it out – indicates a very bleak future for Baby R should she even survive beyond life support which, itself, appears to be unlikely. Such an outcome appears also from the evidence to be beyond contemplation for the medical team. There is evidence that although she is receiving morphine, the administration of that drug itself highlights the need to control pain and she is, at times, agitated and suffering.
Both parents and the medical team involved have, from the evidence, done everything that could be done to ensure the survival of Baby R after birth so that if outcomes had been different she may have been able to reach her full potential. However, the medical issues that she has had following her birth have made it abundantly clear that she will never reach her full potential and, indeed, if she survived her life would be extremely compromised.
In all circumstances, I consider it to be in Baby R’s best interests to make the orders sought by the parents and the hospital and I propose to do so.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant delivered on 22 May 2015.

Associate:

Date: 15 June 2015