A District Health Board v Dee
[2017] NZHC 1049
•19 May 2017
NOTE: ORDER PERMANENTLY SUPPRESSING THE NAME AND ANY DETAIL IDENTIFYING JOHN, HIS FATHER JAMES, HIS STEPMOTHER, SISTER AND BROTHER AND JOHN'S TWO RESPONSIBLE CLINICIANS: SEE CARE OF CHILDREN ACT 2004, S 139; FAMILY COURTS ACT 1980, SS 11B, 11C AND 11D; HIGH COURT RULES, RR 3.12, 3.13, 7.19. THESE ORDERS ARE TO EXTEND BEYOND THE MAIN MEDIA TO ANY TECHNICAL, PROFESSIONAL OR STATISTICAL PUBLICATION. ACCESS TO THE COURT FILE IS PROHIBITED WITHOUT THE LEAVE OF A HIGH COURT JUDGE AND WILL NOT BE GRANTED WITHOUT THE PARTIES BEING HEARD.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-000074 [2017] NZHC 1049
IN THE MATTER OF an application under section 31 of the
Care of Children Act 2004 to place a child in the guardianship of the Court
AND
IN THE MATTER OF
JOHN DEE
BETWEEN
A DISTRICT HEALTH BOARD Applicant
AND
JAMES DEE Respondent
Hearing: 29 March 2017, (further submissions received 21 April 2017) Counsel:
P W Le Cren for the Applicant
M K MacNab for the Respondent
S R Jefferson QC for the ChildJudgment:
19 May 2017
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 19 May 2017 at 3.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
A v DEE [2017] NZHC 1049 [19 May 2017]
Introduction
[1] By judgment dated 27 February 2015, Keane J appointed the Court as John Dee’s guardian until he turns 16 years of age.1 The orders made by Keane J are set out in schedule A to this Judgment. Keane J directed a review of the orders in March 2017.
[2] Following Keane J’s retirement, the review was conducted before me over a number of telephone conferences and a hearing on Wednesday, 29 March 2017. The key issue at the review stage was the disclosure of John’s condition to him, so that his views on treatment could be ascertained. Counsel for the child was appointed to represent John’s interests and report to the Court on this issue.
[3] The parties are agreed that it is premature to disclose John’s condition to him, and that the process of disclosure is best managed by John’s clinical team.
[4] As to the continuation of the guardianship orders, although John’s father maintains his opposition to treatment for his son, he is resigned to that treatment continuing for present purposes. In substance therefore, there is no opposition to John Dee’s guardianship continuing with some variation to the orders made by Keane J.
[5] Draft orders were circulated to the parties for their comment. Subject to some concerns expressed by John’s father (addressed below), the terms of those draft orders are agreed.
[6] The purpose of this judgment is to record the current position in relation to John Dee’s care and treatment and to confirm the continuation of the guardianship orders made by Keane J, subject to the amendments set out below.
Current status
[7] John has received treatment in accordance with the orders over the past two years. He is clinically well with the reports from his clinicians indicating that there
1 ADHB v Dee [2015] NZHC 304
is good control of his HIV at present, and an improvement in his immune system as a result of treatment.
[8] The position of John’s father remains the same as it was in 2015. That is, he does not accept that HIV causes AIDS and holds a strong belief that his son does not require treatment. Nevertheless, John’s father has continued to support treatment by taking John to clinic appointments and allowing nurses to attend on John at home to give him medication. John’s father is resigned to the continuation of the guardianship orders.
[9] At the time Keane J made his orders, John had not been told that he had HIV, although he was aware that he had a “blood disorder”. Keane J directed a lawyer of senior standing to be appointed for John to represent his interests at the two year review, and to relay John’s views about his treatment. The direction was made on the assumption that by the time of the review, John would have been told by clinicians of his diagnosis.
[10] That assumption was not realised. John is still not aware that he has HIV. In December 2016, I appointed counsel for the child to report to the Court on the question of disclosure to John of his HIV status; how John’s views on matters before the Court could be ascertained; and whether and how counsel should communicate with John. Counsel was directed not to confer directly with John pending further order of the Court. A clinical psychologist was engaged to assist counsel in reporting to the Court on these questions.
[11] Counsel for the child and the clinical team are aligned on the issue of disclosure. They consider that John is not yet at a stage where disclosure should be made. Essentially, the disclosure process forms part of the treatment of the condition. John’s clinical team emphasise that disclosure must be handled carefully and sensitively in order to sustain and maintain the therapeutic relationship with John. In this case, John’s family dynamic, and the firm views held by his father, further complicates the disclosure process.
[12] Although the clinical team does not consider disclosure should be made at
this stage, they consider that it is nevertheless getting “close”. John has been asking
a number of questions which show a natural curiosity about his condition. John’s father suspects that John may have an inkling of his current condition also. The risk of inadvertent disclosure is always present.
[13] John’s father accepts that the time will come when John will need to be told of his condition, but he does not consider that John is either old enough or mature enough to assimilate the information at this stage. Because of his views about HIV and AIDS, John’s father accepts that he is not the best person to address any questions John might have about his condition. If John should start asking questions about his condition, or if there is inadvertent disclosure, then John’s father considers John’s clinical team to be best placed to answer those questions.
[14] At the review hearing there was general agreement to disclosure being managed by John’s clinical team. There was also general agreement (or at least resignation on the part of John’s father) that the Court’s guardianship of John should continue on the basis of Keane J’s orders, subject to some minor tweaks.
Draft orders
[15] Following the hearing, I issued a minute on 3 April 2017 setting out the draft orders I intended to make and sought counsel’s submissions on the terms of those orders.
[16] There was no opposition to the terms of the draft orders by either the
A District Health Board, or counsel for the child.
[17] However, John’s father was concerned that the draft orders unduly restricted him from coming back to Court to raise any issues with the day to day care of John. I do not minimise the validity of that concern. However, it appears to arise out of a misunderstanding of the terms of the draft orders. The orders I intend to make relax the conditions imposed in [37] of Keane J’s judgment. A relaxation is appropriate given the smooth progress of treatment so far, and the significant degree of co- operation and trust established between John’s father and the clinical team.
[18] As presently drafted, the orders preserve leave for any of the parties
(including John’s father) to come back to Court if there is a material change in
circumstances. A “material change in circumstances”, includes, without limitation, John becoming aware of his HIV status or any other change which materially impacts on his continuing treatment.
[19] In my view, those orders strike the necessary balance between the role of this Court as guardian, the role of John’s father as agent of the Court and having day to day care of John, and the clinical team’s role in overseeing John’s treatment. In that context, the draft orders do not impose an undue restriction on the right of access to the Court should there be a matter of concern affecting John’s treatment which requires the Court’s attention.
Orders
[20] I am satisfied that guardianship of John Dee should continue until he reaches the age of 16. I accordingly make the following orders (which refer back to the orders of Keane J set out in Schedule A to this judgment):
(a) The order made by Keane J appointing the Court as John’s guardian until he becomes 16 (at [32]), and the appointment of John’s father as the Court’s agent on the terms and conditions set out at [33], are to continue pending further order of the Court.
(b)The appointment of the two clinicians named in the application as the Court’s agents to manage John’s clinical care as set out at [34] of Keane J’s judgment are to continue with the following addition made to order [34](c)(vii) as follows:
(vii) Collecting and disclosing information for the purposes of facilitating treatment of the specified conditions, including, but not limited to, disclosing John’s HIV status should he ask any questions requiring such a response, or in the event there is inadvertent disclosure of his HIV status.
(c) These orders are set down for review in one year’s time, in Chambers, for a one hour fixture on a date in April 2018 to be allocated by the Registrar when this decision is issued. A telephone conference three weeks prior to that date is to be convened to address exchange of memoranda and the filing of any necessary reports.
(d) The order at [37] of Keane J’s judgment is revoked and replaced with
the following order:
Leave is reserved to the Board, to John’s father, and to the lawyer for John to apply to the Court for an earlier review of these orders if there is a material change in circumstances. A material change in circumstances includes (without limitation) John becoming aware of his HIV status, or any other change which materially impacts on his continuing treatment.
(e) The Board, John’s father, and the lawyer appointed for John, must file and serve a memorandum with the Court informing the Court of any material change in circumstances, including, but not limited to, John asking questions about his HIV status, or there being inadvertent disclosure to John about his diagnosis, or that of any of his family members.
(f) The suppression orders made at [38] of Keane J’s judgment are
continued.
Edwards J
Counsel: S R Jefferson QC, Auckland
M K MacNab, Auckland
Solicitors: Claro, Auckland
Schedule A
Orders made by Keane J
[32] In the result, I am satisfied that the only way to safeguard John’s welfare and best interests, given James’ fixed opposition to John’s diagnosis and treatment, is for this Court to become his guardian until he becomes 16, on I make that order. On the evidence John’s condition will remain unchanged until he is 16 and, indeed, for the rest of his life, as will his need for medication. An order ending after 18 months, or at any other time within the next seven years, is at odds with that clinical reality.
[33] Secondly, I appoint John’s father James, as the Court’s agent, to be responsible for John’s day-to-day care and to exercise all the related rights and powers of a guardian, and to be subject to all the related duties, subject to the condition that he ensure that John is always available for treatment at any time and place specified by John’s nominated clinicians.
[34] Thirdly, I appoint the two clinicians, who are named in the application and from whom I heard evidence, to be the Court’s agents to manage John’s clinical care on the following terms:
(a) They may consent to and facilitate the treatment of any of the following specified conditions:
(i) John’s human immunodeficiency virus (HIV);
(ii) Any clinical condition caused or exacerbated by
John’s HIV;
(iii) Any clinical condition that they reasonably suspect
to be caused or exacerbated by John’s HIV.
(b) They may act jointly or independently, and may appoint or instruct appropriately qualified third parties to treat John for the specified conditions; and they may delegate their powers and responsibilities to another infectious diseases consultant either temporarily or permanently, provided James is given reasonable notice;
(c) The treatment they may give to John for the specified conditions may include, but is not limited to:
(i) Periodically monitoring John for the specified conditions at outpatient appointments and by blood tests;
(ii) Prescribing for John and administering to him antiretroviral therapy (ART);
(iii) Admitting John to hospital to treat his specified conditions, including any complications of ART;
(iv) Administering ART to John each day by directly observed therapy in John’s home or elsewhere if required;
(v) Prescribing and administering prophylactic antibiotics and other therapy ancillary to John’s treatment for the specified conditions;
(vi) Specifying the place and time at which John must be presented for treatment of the specified conditions;
(vii) Collecting and disclosing information for the purpose of facilitating treatment of the specified conditions.
[35] Fourthly, I set these orders down for review in two years time, in chambers in the first instance at a one hour fixture, on a date in March 2017 to be allocated by the Registrar when this decision is issued, and I direct that:
(a) John’s nominated clinicians are to file and serve 21 days
before the hearing a report describing:
(i) John’s then state of health;
(ii) How willingly John is taking his medication and how well he has tolerated it;
(iii) Any material change in John’s diagnosis, prognosis
or treatment.
(b) A lawyer of senior standing is to be appointed for John in November 2016, to represent his interests, with authority to relay to the Court by memorandum, filed and served 14 days before the hearing, John’s views about his treatment (assuming that by then John has been told by his clinicians of his diagnosis).
(c) James is to file and serve any memorandum he wishes to file, concerning the orders in place, seven days before the hearing.
[36] On the first call of this review in chambers the issue will be whether there is any sufficient reason to revisit the orders in order to safeguard John’s welfare and best interests (as I see it, that is a high threshold having regard to the clinical evidence); and, if such a reason is fairly arguable, what directions are then called for. I anticipate also that if, as a result of the review, the orders continue essentially unchanged, the Court will consider whether to direct any further review.
[37] Fifthly, I reserve to the Board, to James, and to any lawyer appointed for John, assuming a lawyer has been appointed, leave to apply to the Court for an earlier review in case of emergency. I emphasise that the emergency must be real. It must some unanticipated circumstance or event radically affecting the logic or viability of the orders and John’s welfare and best interests; nothing less.
[38] Sixthly, I make final orders, in place of the present interim orders, suppressing the names and any detail identifying John, his father James, his stepmother, and his sister and brother, and the names and any detail identifying his responsible clinicians. These orders must be complied with by any technical, professional or statistical publications as well as by the main media. Access to the Court file is also prohibited without leave, and leave will not be granted without the parties being heard.2
[39] These last orders are made, relying on this Court’s inherent as well as statutory powers, to ensure that John will continue to be treated confidentially and appropriately, consistently with his age and level of maturity; and to ensure that the privacy interests and clinical needs of other children with HIV, who are being treated as he is, are not put in jeopardy.
2 Care of Children Act 2004, s 139; Family Courts Act 1980, ss 11B, 11C, 11D; High Court Rules rr 3.12, 3.13, 7.19; Taylor v Attorney-General [1975] 2 NZLR 675.