Women's and Children's Health Network Inc v M, CN - [2013] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
WOMEN’S AND CHILDREN’S HEALTH NETWORK INC v M, CN & ORS
[2013] SASC 16
Reasons for Ruling of The Honourable Justice David
24 January 2013
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 seeking authority for the Women’s and Children’s Hospital to administer transfusions of blood and blood products in the course of treating a child with leukaemia in the absence of the consent of his parents – parents’ objection on religious grounds – consideration of parens patriae jurisdiction of the Court – consideration of whether treatment involving the administration of blood and blood products is in the best interests of the child.
Held: Application granted – medical evidence received by the Court clearly shows that it is in the child’s best interests to receive the recommended course of treatment, which necessarily involves the administration of blood and blood product transfusions.
Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13; Supreme Court Act 1935 (SA) s 17(2), referred to.
Children, Youth & Women’s Health Services Inc v YJL, MHL and TL [2010] 107 SASR 343; Women’s and Children’s Health Network Inc v LC, JC, and KC (By Her Litigation Guardian) [2012] SASC 104, applied.
Chignola v Chignola (1974) 9 SASR 479, considered.

WOMEN’S AND CHILDREN’S HEALTH NETWORK INC v M, CN & ORS
[2013] SASC 16
Civil: Application

DAVID J: The Women’s and Children’s Health Network Incorporated (“WCHNI”) made an urgent application seeking authority for the Women’s and Children’s Hospital (“WCH”) to administer transfusions of blood or blood products in the course of treating a child (the third defendant) in the absence of the consent of his parents (the first and second defendants).
With the consent of all parties, this matter proceeded directly to an urgent trial. I appointed Mr Croser as litigation guardian for the third defendant to represent his interests at trial, independently from those of the first and second defendants. At the conclusion of a short trial I granted the plaintiff’s application and made the following orders:
1.Without the consent of the parents of the child CMM (‘the child’) Dr Ram Suppiah or Tamas Revesz (‘the authorised clinician’) of the Women’s and Children’s Heath Network Inc (‘the WCHNI’) are authorised to carry out either by himself or by:
1.1any qualified member of the Hospital; or
1.2any qualified medical practitioner visiting the Hospital;
who is under his direction or supervision, the transfusion procedures identified in order 4, in relation to the child if:
1.3in the opinion of the authorised clinician the transfusion procedures are necessary, rather than any other medical procedure;
1.4in forming the opinion referred to in 1.3 the authorised clinician at all times seeks to avoid unnecessary use of, and to minimise the use of, the transfusion procedures;
1.5the necessity of the transfusion procedures arises as part of the treatment for the child’s leukaemia.
2.In the event that Dr Ram Suppiah or Dr Tamas Revesz is not available, then for the purposes of order 1 the authorised clinician shall instead be a Consultant at the Haematology/Oncology unit at the Hospital, provided that that person has access to, and has read, a copy of these orders.
3.Despite the conscientious objections of the first and second defendants to the transfusion procedures, they are ordered to comply with any reasonable direction given by the authorised clinician as to the treatment of the child as specified in order 1 and as to attendance by the child for that treatment.
4.For the purposes of these orders the expression ‘transfusion procedure’ means:
4.1the transfusion of blood or blood products and re-infusion of the child’s own blood;
4.2treatment ancillary to 4.1.
5.A copy of this order is to be included in the Case Notes at the Hospital relating to the third defendant but operation of these orders is not stayed until such inclusion has occurred.
6.The orders be entered forthwith.
I now set out my reasons for this ruling.
The third defendant, CMM, is a three year old child who is currently an inpatient at the WCH. On 17 January 2013, CMM was diagnosed with Precursor B-Cell Acute Lymphoblastic Leukaemia (“ALL”). Following this diagnosis, the primary consultant responsible for the treatment of CMM, Dr Ram Suppiah, discussed the recommended course of treatment for CMM with the first and second defendants. The treatment program proposed by Dr Suppiah is consistent with the latest relevant international treatment protocols and that which is usually adopted by the WCH in treating children with ALL. Transfusions of blood and blood products constitute an integral component of such treatment. It is at this time that the first and second defendants indicated that they could not consent to CMM receiving blood or blood product transfusions on account of their religious beliefs.
The Court received affidavit evidence from Dr Suppiah and Dr Revesz, and evidence from Dr Suppiah at trial. In short, the medical evidence received by the Court is as follows.
Without treatment, the universally accepted prognosis for ALL sufferers is death, probably within a matter of weeks of diagnosis. With treatment, there is an 85 to 90 per cent cure rate. The optimal treatment program for ALL is conducted for approximately two years from diagnosis. It involves various stages of chemotherapy, of differing intensities, utilising a range of different chemotherapy drugs administered orally, intrathecally (into the spinal fluid) and intravenously. Blood and blood product transfusions are required to combat the destructive effects of the chemotherapy; namely to ensure that haemoglobin, red blood cell and platelet levels are maintained.
On Dr Suppiah’s evidence, the recommended course of treatment for CMM cannot be undertaken with any degree of safety without transfusions of blood or blood products. He outlined the generally accepted guidelines of levels at which transfusions of blood or blood products are required, and the life-threatening consequences to a patient whose levels are left to deteriorate to this point untreated. Dr Suppiah is of the opinion that CMM’s levels will inevitably deteriorate to these life-threatening levels risking considerable strain on his heart, uncontrollable bleeding and organ and heart failure.
Most pressing is the fact that CMM is scheduled to commence intravenous chemotherapy on 29 January 2013, before which he needs to undergo surgery to insert an ‘infusaport’ into his chest so the intravenous chemotherapy drugs may be administered to CMM in the least traumatic manner; directly into one of the main blood vessels in his chest. Dr Suppiah informs the Court that no surgeon will be willing to perform this procedure on CMM with his current depleted platelet level given the risk of bleeding. CMM needs to receive a platelet transfusion to raise his platelet levels, and on the current treatment timeline, he would need to receive this transfusion within the next 24 to 48 hours to prevent delaying the commencement of the first stage of treatment.
The Court also received affidavit evidence from the first and second defendants. Both parents outlined their objections to CMM receiving transfusions of blood or blood products as the practice is contrary to their religious beliefs as devout Jehovah’s Witnesses. They also voiced concerns over the risks associated with blood transfusions and their preference for alternative treatment regimes which may prevent or reduce the need for transfusions of blood or blood products.
These last two points were addressed by the evidence of Dr Suppiah. I accept the assessment of Dr Suppiah that the risks associated with blood transfusions, including use of the wrong blood, infection and transfusion reactions, are low and are heavily outweighed by the risks for CMM if he does not have the transfusions. I further accept Dr Suppiah’s evidence that the auditing process in place at the WCH is an effective safeguard against the unnecessary use of blood or blood products. I am also satisfied that Dr Suppiah has taken considerable time to consider any possible alternative treatment options that may prevent or reduce the need for transfusions of blood or blood products, such as the use of iron and erythropoitein to promote haemoglobin production. I therefore accept Dr Suppiah’s conclusion that there is no viable alternative treatment that does not involve the administration of blood and blood product transfusions.
Significantly, on the evidence of both parents, they acknowledge the Court’s authority to authorise the administration of blood and blood product transfusions in the absence of parental consent. They also make an undertaking that they would comply with any order made by the Court and would continue to bring CMM to the WCH for treatment, even if it involves the administration of transfusions against their wishes.
I heard this application with the benefit of the established line of authority of Children, Youth & Women’s Health Services Inc v YJL, MHL and TL (By His Next Friend) (“YJL”)[1] and, more recently, Women’s and Children’s Health Network Inc v JC, JC, and KC (By her Litigation Guardian) (“JC”).[2]No counsel submitted that a different course should be adopted.
[1] [2010] 107 SASR 343.
[2] [2012] SASC 104.
This application seeks to enliven the parens patriae jurisdiction of this Court; an inherent jurisdiction originally sourced in the Court of Chancery in England[3] and now vested in this Court by the operation of s 17(2) of the Supreme Court Act 1935 (SA). It provides for the protection of the person and property of those in this State who are unable to look after themselves. I agree with the reasons of White J in YJL, as affirmed by his Honour in JC, that this jurisdiction has not been displaced by statute. I also agree that this power should be exercised with caution and only when the Court is satisfied that in order to protect the welfare of a child it is necessary to suspend or supersede the parental right.
[3] See Chignola v Chignola (1974) SASR 479, 480.
In the present case, all parties acknowledge that the statutory power under s 13 of the Consent to Medical Treatment and Palliative Care Act 1995 (SA) (“the Act”) has not been triggered by CMM’s current medical condition, thereby eliminating the remaining available power to provide medical treatment in the absence of parental consent outside of the parens patriae jurisdiction of the Court.
This interpretation of s 13 of the Act, namely the meaning of ‘imminent risk to life and health’, is consistent with that adopted in YJL and JC; that the provision applies to medical treatment that is reactive rather than treatment that is merely preventative or facilitative. I am satisfied that the power under s 13 of the Act has not yet been enlivened in the present case, however, I hasten to add that on the medical evidence before the Court, it is not far from it.
In determining whether the parens patriae jurisdiction should be exercised in the present case, I consider the comments of White J in YJL, which were subsequently relied upon by his Honour again in JC:[4]
“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…”
[4] Women's and Children's Health Network Inc v JC, JC and KC (by Her Litigation Guardian) [2012] SASC 104, [30], citing Children, Youth & Women's Health Services Inc v YJL, MHL and TL (by His Next Friend) [2010] 170 SASR 343, [32].
I am satisfied that Dr Suppiah and his colleagues at the WCH are acting in CMM’s best interests. I accept that the recommended treatment program for CMM is in his best interests and that the program necessarily requires the administration of blood and blood product transfusions. I accept Dr Suppiah’s evidence that there is no viable alternative to the transfusion element of the treatment and the low level risks involved with transfusions are heavily outweighed by the high cure rate possible through their use. To refuse CMM this treatment would be dangerously detrimental to his welfare, likely to cause his death.
I have also carefully considered the objections of CMM’s parents, which I am satisfied are the result of genuine and considered religious convictions. I am also satisfied that CMM’s parents nevertheless want the best treatment for CMM and believe that they are acting in the best interests of CMM.
In circumstances where there is such conflict between different courses of conduct which are each purported to be in the best interests of a child, it is for the Court to make its own independent judgment as to the course which best serves the interest of the child. In the present case, the medical evidence is clear. Indeed, it is undisputed by the first and second defendants. The welfare of CMM requires him to undergo the proposed treatment regime and receive transfusions of blood and blood products as deemed necessary.
Accordingly, I find that the present application warrants the exercise of the parens patriae jurisdiction of the Court to provide the WCH with the authority to administer the requisite treatment to CMM despite the objections of CMM’s parents to that treatment, or any part thereof.