Women's and CHILDREN'S Health Network Inc v JC, JC, and KC (By Her Litigation Guardian) - [2012] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Civil)
WOMEN'S AND CHILDREN'S HEALTH NETWORK INC v JC, JC, AND KC (BY HER LITIGATION GUARDIAN)
[2012] SASC 104
Reasons for Decision of The Honourable Justice White
1 June 2012
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION - POWERS RELATING TO MEDICAL TREATMENT
Application under parens patriae jurisdiction by Women's and Chidlren's Hospital for authority to administer transfusions of blood products to a child - parents of child object on religious grounds - consideration of parens patriae jurisdiction - whether in best interests of the child to authorise transfusions.
Held: authority granted.
Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13, referred to.
Children, Youth & Women's Health Services Inc v YJL, MHL and TL [2010] SASC 175, applied.
Chignola v Chignola (1974) 9 SASR 479; Re O'Hara [1900] 2 IR 232; Rolands v Rolands (1983) 9 Fam LR 320; Re Paul [2008] NSWSC 960; Re Bernard [2009] NSWSC 11; Director General of the Department of Community Services v BB [1999] NSWSC 1169, considered.

WOMEN'S AND CHILDREN'S HEALTH NETWORK INC v JC, JC, AND KC (BY HER LITIGATION GUARDIAN)
[2012] SASC 104
Civil

WHITE J. On 1 June 2012 I made orders authorising consultants in the Haematology/Oncology Unit at the Women’s and Children’s Hospital (WCH) to give transfusions of blood or of blood products to the third defendant (KC) without the consent of her parents (the first and second defendants). I outlined briefly at the time my reasons for those orders and said that I would publish more formal reasons later. What follows are those reasons.
KC is a four-year-old girl who has been diagnosed with leukaemia. Dr Ritchie, KC’s paediatric oncologist, considers that in the absence of active treatment including chemotherapy her prognosis is poor, with a high risk of death within a matter of months. That prognosis can, however, be markedly improved by a recognised treatment regime in which chemotherapy and the provision of blood transfusions are essential elements. The WCH wishes to be able to begin that regime, but KC’s parents object, on the basis of their religious convictions, to blood transfusions.
Accordingly, the WCH has applied to the Court for an authority to administer the blood transfusions which are necessary for, and incidental to, the chemotherapy treatment, in the absence of the parents’ consent, and despite their objection.
Owing to the serious and deteriorating nature of KC’s condition I directed, on the application of the WCH and without opposition from KC’s parents, that the matter proceed immediately to trial. Both the WCH and the parents of KC were represented by counsel. Without objection from the parents, I appointed Mr Croser as KC’s litigation guardian and he represented her interests in the trial.
KC first came to the Women’s and Children’s Hospital on 28 May. Her parents were concerned about a pain in her leg and an intermittent fever which had been present for about six weeks. They had taken KC to see other doctors in that period, but it was not until the results of a blood test taken by the WCH on 28 May became available that the diagnosis of acute lymphoblastic leukaemia was made.
Dr Ritchie is the primary consultant responsible for the care of KC at the WCH. Dr Tapp is the Head of Haematology-Oncology and Director of Cancer Services at the WCH. She has also been involved with the care of KC. Dr Ritchie gave evidence in the trial, and I received an affidavit from Dr Tapp. None of the defendants required Dr Tapp to attend for cross‑examination. I accept that each of Drs Ritchie and Tapp has appropriate expertise in relation to the treatment of KC’s leukaemia. I accept their evidence and opinions about KC’s treatment and rely on it (particularly that of Dr Ritchie) for the following findings and conclusions.
Acute lymphoblastic leukaemia is a malignancy of the white cells, in particular lymphocytes, in which the marrow (which produces blood) is replaced by leukaemic cells, and so becomes incapable of producing blood cells. While the marrow is not producing blood cells, the patient becomes progressively anaemic and thrombocytopenic (low platelet count).
If left untreated, leukaemic cells will infiltrate the organs of the body and cause their failure.
The prognosis for acute lymphoblastic leukaemia without treatment is invariably fatal with death usually occurring in a matter of weeks.
KC’s already has low haemoglobin levels caused by the leukaemia. A consequence of these low levels is that the muscles and organs in her body are functioning with less oxygen. Left untreated this will result in damage. KC’s haemoglobin levels on 31 May were 54 g/L. A normal haemoglobin level is between 113 and 148 g/L. The National Health and Medical Research Council Guidelines indicate that transfusions of blood should be given if the haemoglobin levels fall below 70 g/L. KC’s levels are now within the risk category for heart, kidney and brain damage.
The standard treatment for leukaemia developed in accordance with international protocols is the administration of chemotherapy. A variety of drugs are used for this purpose. The intended effect of the chemotherapy is the destruction of the leukaemia cells.
The first month of chemotherapy treatment comprises oral, intrathecal (into the spinal fluid), and intravenous chemotherapy. The aim of the treatment is to destroy the leukaemia cells which are causing the marrow failure. It is expected that towards the end of the first month of chemotherapy, the bone marrow will recover and resume production of normal blood cells. Thereafter, more intensive chemotherapy will be undertaken. The next phase of treatment will involve admission to hospital fortnightly for two months for high doses of intravenous chemotherapy. After that there will be further chemotherapy, amounting in all to some six or seven months of intensive chemotherapy. Following this, maintenance oral chemotherapy will be undertaken for approximately 18-24 months.
This is the course of treatment which the WCH proposes for KC. Blood transfusions are an essential element of the treatment for a number of reasons. First, to elevate KC’s haemoglobin levels so as to maintain tissue perfusion and oxygenation and to lower the immediate risk of organ failure, in particular, cardiac failure.
Secondly, the chemotherapy treatment will affect all of the rapidly dividing cells in KC’s body, and not only the leukaemic cells. As a result, KC will suffer reduced red cell, white cell and platelet production, with some consequential effects on her body function and appearance. The transfusion of blood products will assist in mitigating these effects.
Thirdly, blood products are required to raise KC’s platelet count to an acceptable level to enable the proposed chemotherapy treatment to begin. Platelets are required for clotting the blood. KC should have a central line inserted under general anaesthetic so that intravenous chemotherapy can be given. Her current platelet count is too low for this to occur without the risk of uncontrolled bleeding. In addition, it is too low to allow the other surgery which she may require as part of her treatment, without a substantial risk of life-threatening bleeding.
With the course of treatment proposed by the WCH, KC has a 80-90 per cent chance of a cure.
Without the blood transfusions and chemotherapy treatment, it is expected that KC will die within a matter of weeks. Even if she does survive, the prolonged period during which she will have low haemoglobin levels will mean that she is vulnerable to developing heart, brain and kidney damage. The low haemoglobin level will also mean that KC is at risk of death through cardiac failure.
There are no other forms of treatment appropriate in KC’s case. In some cases, erythropoietin can be used as an alternative to red blood cells. It stimulates red cell production, but I accept Dr Ritchie’s evidence that it is not appropriate in KC’s case. There are also reported cases of erythropoietin stimulating tumour growth in adults.
There are some risks involved in any administration of blood products. These include use of the wrong blood, infection and transfusion reactions. These risks must be weighed against the anticipated benefits of the chemotherapy treatment and blood transfusions. I accept Dr Ritchie’s evidence that the risks associated with blood transfusions are low and are heavily outweighed by the risks for KC in not having the transfusions.
KC’s father gave evidence. He and his wife are Jehovah’s Witnesses. They understand the diagnosis in KC’s case, the recommended course of treatment, the place of blood transfusions in the proposed treatment regime, and the prognosis for KC if the WCH is not permitted to proceed with that regime. Dr Ritchie and others at the WCH have discussed with the parents and the Jehovah’s Witness liaison team both the need for, and the elements of, the chemotherapy regime.
KC’s parents object to KC having blood transfusions because of their religious convictions. These are based on their understanding and interpretation of the Bible and, in particular, Acts 15:29. I accept KC’s father’s evidence as honest and reliable as well as his account of his wife’s views and beliefs. Although KC’s mother did not give evidence, I accept that she also holds the views and beliefs about which her husband spoke, and that her objection to the provision of blood transfusions is based on her religious convictions. I also accept that the religious beliefs of KC’s parents are sincerely held.
It is clear from the evidence that KC’s parents love their child and want the best care for her. They accept the accuracy of KC’s diagnosis and accept that the course of treatment proposed by the Hospital is the best chance for KC’s survival. They accept the Hospital’s view that there are no safe alternatives to the treatment regime involving chemotherapy and blood transfusions. It is also clear that KC’s parents have given consideration to the issues involved and to the consequences which their objection may have for KC. In making their objection to the blood transfusions, they have taken into account KC’s present physical wellbeing, and her long-term spiritual and physical wellbeing as they perceive it to be. Their decision to object to blood transfusions is not arbitrary, or a result of indifference to KC’s welfare, It is, as I have indicated, based on their genuinely-held personal beliefs.
KC’s father’s evidence indicated that he and his wife understand the powers of a Court to authorise the administration of blood transfusions despite parental opposition. Mr C said that if such an order were made, it would not affect their care and concern for their daughter, nor that of their Church.
I accept the submission of Mr Croser that KC is too young to be able to communicate a position on, or her understanding about, matters of spiritual belief and the issues relating to her treatment. I also accept his submission that the Court’s role is to consider objectively the best interests of KC taking into account both her physical and spiritual needs.
In Children, Youth & Women’s Health Services Inc v YJL, MHL and TL),[1] I discussed the Court’s jurisdiction to make orders of the kind now sought by the WCH and the principles which should guide the Court in considering such applications.
[1] [2010] SASC 175.
This hearing proceeded on the basis of the discussion of relevant principles in YJL and none of the counsel submitted that the Court should now take a different approach. Accordingly, it is not necessary presently to discuss the principles in detail.
The jurisdiction which the Court is asked to exercise is the parens patriae jurisdiction. This is an inherent jurisdiction of the Court to protect the person and property of those in this State who are unable to look after themselves. The jurisdiction has its origin in the Court of Chancery in England[2] and, by virtue of section 17(2) of the Supreme Court Act 1935 (SA), is vested in this Court.
[2] Chignola v Chignola (1974) 9 SASR 479 at 480.
For the reasons which I gave in YJL I am satisfied that this inherent power of the Court has not been displaced by statute.
It is well settled that the parens patriae jurisdiction may be exercised to authorise transfusions to be given to a child, in the face of parental objection.[3]
[3] See Children, Youth & Women’s Health Services Inc v YJL, MHL and TL (by his next friend) [2010] SASC 175; Rolands v Rolands (1983) 9 Fam LR 320; Re Paul [2008] NSWSC 960; Re Bernard [2009] NSWSC 11; Director General of the Department of Community Services v BB [1999] NSWSC 1169.
In relation to the exercise of the jurisdiction, I repeat what I said in Children, Youth & Women’s Health Services Inc v YJL, MHL and TL:
The welfare of the child is the Court’s first and paramount consideration and the Court must make its own independent judgment on any question which involves the interests of the child. While proper respect is paid to the views of the parents or of the child in question, where there is a conflict it is for the Court to decide what should occur… Nevertheless, it is appropriate for the Court to act with caution. In this respect I refer to what was said by Fitzgibbons LJ in Re O’Hara[4]: “In exercising the jurisdiction to control or to ignore the parental right the Court must act cautiously. Not as if it were a private person acting with regard to its own child but acting so that the welfare of the child requires that the parental right should be suspended or superseded.” [5]
[4] [1900] 2 IR 232 at 240.
[5] Children, Youth & Women’s Health Services Inc v YJL, MHL and TL (by his next friend) [2010] SASC 175 at [32]-[33].
It is appropriate to consider whether an exercise of the parens patriae jurisdiction is necessary in this case. This involves reference to the powers of the WCH under the Consent to Medical Treatment and Palliative Care Act 1995 (SA). This Act entitles medical practitioners to administer medical treatment to a person who is incapable of consenting if the treatment is necessary to meet an imminent risk to life or health.[6]
[6] Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13.
The WCH interprets the Medical Treatment Act as providing a power for the lawful provision of medical treatment in cases of sudden need which demand immediate action. It takes the view that it may invoke the Act only when KC’s condition becomes a clinical medical emergency, and considers that that stage has not yet been reached. On therapeutic grounds the WCH does not wish to wait until KC reaches the stage of clinical medical urgency before it begins any blood transfusions.
In YJL I considered the Medical Treatment Act in circumstances which are similar to the present.[7] I construed the power in s 13 of the Act as available when the treatment is reactive rather than preventative or facilitative. No party in the present case suggested that a different construction should be adopted. For this reason I am satisfied that the Medical Treatment Act does not enable the WCH to proceed with treatment while KC’s condition is in its present state.
[7] Children, Youth & Women's Health Services Inc v YJL, MHL and TL (by his next friend) [2010] SASC 175 at [38].
I now turn to consider the exercise of the parens patriae jurisdiction as it relates to KC’s circumstances.
As already indicated, I am satisfied that KC’s parents have a genuine, conscientious objection to the provision of blood transfusions and so will not provide their consent to the treatment which the WCH proposes. I am satisfied that their objection is based upon genuine religious conviction. I am also satisfied that KC’s parents have her best interests at heart. This is not a case of parents acting without regard, wilfully, recklessly or indifferently, to the interests of their child.
I am satisfied that Dr Ritchie and Dr Tapp, who are the treating clinicians, also have KC’s best interests at heart and that they are sensitive to the basis for KC’s parents’ objection to the treatment which they propose. The evidence shows that they have been understanding and supportive of the parents and respectful of their views and beliefs. I also take account of the evidence of Dr Ritchie that the proposed administration of blood transfusions by the Hospital will be based on KC’s specific needs, limited to the minimum amount required and administered only when necessary, and then only by a consultant who is alert to the sensitivities of her personal circumstances.
I am satisfied that it is appropriate and, indeed, necessary for KC to receive blood transfusions as an incident of the recognised course of treatment for her leukaemia if she is to have any reasonable chance of survival in good health. In forming this view I have taken into account the religious beliefs of KC’s parents. Despite the parents’ religious beliefs and despite the concerns which they have about KC’s spiritual wellbeing, I am satisfied that it is in KC’s best interests to receive the blood transfusions. That is because, without the blood transfusions, there is a very high prospect that she will die. The provision of blood transfusions will reduce that prospect markedly and increase not only the prospects of her survival, but of that being a survival in good health. I am satisfied that there are no reasonable alternatives to the provision of blood transfusions as a means of treatment.
Accordingly, I am satisfied that this is a case in which the Court should exercise the parens patriae jurisdiction so as to permit KC to receive the treatment which will give her a reasonable chance of survival, and that it should do so despite the objection of KC’s parents to that treatment.
I note KC’s father’s evidence that he and his wife will act in conformity with this Court’s orders.
These are the reasons for the orders which I made on 1 June 2012 authorising WCH to give transfusions of blood or of blood products to KC and requiring KC’s parents to comply with reasonable directions from consultants at the WCH concerning her treatment.