Re Heather - [2003] NSWSC 532

CITATION: Re: Heather [2003] NSWSC 532

HEARING DATE(S): 12 June 2003

JUDGMENT DATE:
12 June 2003

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Previous orders setting out steps to be taken to enable chemotherapy to be administered supplemented

CATCHWORDS: FAMILY LAW AND CHILD WELFARE - CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS - wards of court - orders to facilitate administration of chemotherapy to child with cancer - significance of expressed opposition of child to treatment

PARTIES :
Director-General of Department of Community Services - Plaintiff
Father of Heather - First defendant
Mother of Heather - Second defendant

FILE NUMBER(S): SC

COUNSEL: E Boyle - Plaintiff
A Healey - Defendants
M Anderson - for Heather

SOLICITORS: Crown Solicitor - Plaintiff
Stacks Law Firm - Defendants
Legal Aid Commission - for Heather

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

THURSDAY 12 JUNE 2003

DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES v “M” RE: HEATHER

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application which relates to the welfare of a girl who the court has ordered will be known by the pseudonym Heather. She was born on 1 September 1991. So she is a little over eleven at the moment.

2 In November of last year, she was diagnosed with a malignant tumour of the ovary, known as a yolk sac tumour. She was operated on and part of that tumour was removed. This happened in the month of the diagnosis, November 2002. She and her parents were given advice that ongoing chemotherapy was required.

3 The particular type of tumour she had is one called a mixed germ cell tumour. One of the characteristics of a tumour like this is that it is composed of different types of tumour cell. Some types of those tumour cells secrete a characteristic chemical which can be picked up by blood tests. Some types of them do not secrete any chemicals. Those blood tests can provide some indication of whether the tumour is growing or not, but because of the presence of those cells, which do not secrete the characteristic marker chemicals, blood tests are not a complete indicator of the growth of the tumour.

4 In December of last year, the child’s parents took her to Melbourne where they consulted various doctors in the hope of being able to find a treatment regime which did not involve chemotherapy. They consulted a doctor called Dr Noel Campbell, and no report from him is presently before the court. Dr Campbell recommended that they consult another Melbourne doctor, Dr Ballard. Dr Ballard recommended that the chemotherapy treatment should continue. Dr Ballard referred the family to yet another doctor, Dr Sullivan. Dr Sullivan also made a recommendation that the child should return to the area where she lived and proceed with chemotherapy.

5 Dr Alvaro is a Newcastle doctor who had initially been one of the specialists who operated on the child.…

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: [2003] NSWSC 532
Decision Date: 12 June 2003

CaseChat Overview and Summary

In the case of Re Heather, the parties involved were the parents of a child named Heather, who was diagnosed with cancer. The dispute centred on the parents' refusal to consent to a medical treatment plan involving chemotherapy for their daughter. The Family Court of Australia was tasked with determining whether it was in Heather's best interests to undergo the chemotherapy against her expressed opposition, and if so, whether the court should make an order to facilitate the administration of the treatment. The case brought into focus the intersection between family law, child welfare, and medical ethics.

The primary legal issue before the court was whether it was appropriate to override the expressed wishes of a child regarding medical treatment, particularly in light of her age and understanding of the consequences. The court had to consider the best interests of the child, the authority of the parents in making medical decisions, and the role of the court in cases where a child's welfare was at stake. Additionally, the court needed to balance the child's autonomy and right to refuse treatment with the potential medical benefits of the proposed chemotherapy.

In delivering the judgment, the court acknowledged the importance of considering the child's wishes but ultimately found that the paramount consideration was her best interests. The court recognised that Heather, while young, had expressed a clear opposition to the treatment, which was given significant weight. However, the court held that the medical evidence indicated that the chemotherapy was essential for her survival and posed a lower risk than the potential progression of her cancer without treatment. The court concluded that overriding Heather's opposition was necessary to safeguard her welfare and ordered that the chemotherapy be administered despite her refusal. The court's decision highlighted the difficult balance between respecting a child's autonomy and ensuring their well-being in critical medical decisions.

Orders