Auckland District Health Board v S

[2020] NZHC 300

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000331

[2020] NZHC 300

IN THE MATTER

of an application pursuant to s 31 of the Care of Children Act 2004 to place a child under

the guardianship of the Court

AND

IN THE MATTER

of L

BETWEEN

AUCKLAND DISTRICT HEALTH BOARD

Applicant

AND

S & MD

Respondents

Hearing:

26 February 2020

Appearances:

C L Campbell for Applicant

No appearance for Respondents

Judgment:

26 February 2020

ORAL JUDGMENT OF VENNING J

Solicitors:           C L Campbell, Auckland District Health Board

AUCKLAND DISTRICT HEALTH BOARD v S & MD [2020] NZHC 300 [26 February 2020]

[1]                  The applicant, the Auckland District Health Board, has applied to the Court for orders:

(a)granting it permission to commence a proceeding by originating application;

(b)granting it leave to apply for an order that L be placed under the guardianship of the High Court from 26 February 2020 until completion of his chemotherapy treatment and at the latest until 26 August 2022;

(c)appointing Dr Tim Prestidge and Dr Karen Tsui as agents of the Court for the purposes of consenting to the administration of blood and blood products to L:

(i)in connection with treatment (including chemotherapy) of L’s B-cell acute lymphoblastic leukaemia where that treatment is consented to by L’s parents S and MD; and

(ii)where the administration of blood and blood products is in accordance with good clinical practice and in L’s best interests as assessed by Dr Prestidge and Dr Tsui;

(d)appointing L’s parents S and MD as general agents of the Court for all purposes other than consenting to the administration of blood and blood products to L;

(e)directing Dr Prestidge and Dr Tsui to keep L’s parents informed at all reasonable times of the nature and progress of L’s condition and treatment;

(f)reserving leave to the parties to apply to the Court for review of these orders if warranted by a change in circumstances; and

(g)suppressing details of the application under s 139 of the Care of Children Act 2004 (the Act).

Background

[2]                  L was diagnosed on 21 February 2020 with B-cell acute lymphoblastic leukaemia. His treatment of chemotherapy commenced as a matter of urgency on 22 February 2020. L’s parents support the chemotherapy treatment but are unable to consent to the associated administration of blood and blood products to L on account of their religious beliefs as Jehovah’s Witnesses. The administration of blood and blood products is very likely to be required during the course of treatment for L’s condition.

Procedural matters

[3]                  A number of procedural matters arise. First, leave is granted to the applicant, the Auckland District Health Board, to commence this proceeding by originating application. Next, I confirm the allocation of the urgent hearing of the application.

[4]                  The application and accompanying memorandum and affidavits by the medical professionals treating L have been served on the parents. I confirm that service on any further parties is not required. I abridge the usual time for filing a notice of opposition. Given the information before the Court and the parents’ response I do not consider it necessary to appoint counsel for the child under s 7 of the Act. Orders accordingly.

Evidence

[5]                  The evidence supporting the application is contained in the affidavits of Dr Timothy Prestidge, a consultant paediatric oncologist employed by the Auckland District Health Board at the Starship Blood and Cancer Centre at Starship Children’s Hospital and Dr Karen Tsui, also a consultant paediatric oncologist for the applicant, Auckland District Health Board, at Starship.

[6]                  The doctors’ evidence confirms that L is a six year old boy living with his parents S and MD in Auckland. His parents are Jehovah’s Witnesses. L presented to Starship Hospital via his family doctor for investigation and management of a large

swelling in his neck which was increasing in size over two weeks. He was unresponsive to antibiotics. Following further investigations, on Friday, 21 February 2020, L was diagnosed with B-cell acute lymphoblastic leukaemia. Acute lymphoblastic leukaemia is a fast growing cancer of white blood cells in bone marrow. The cells circulate through the body in increasing numbers and accumulate in the lymph nodes causing the type of swelling L had. Without treatment this type of leukaemia is fatal within a few weeks to months.

[7]                  The initial treatment approach for standard risk B-cell acute lymphoblastic leukaemia is internationally established. It involves a multi-agent chemotherapy regime incorporated into the first part of the Children’s Oncology Group protocol: AALL1731. The Children’s Oncology Group is a large collaborative organisation based in the United States that studies the treatment of cancer in childhood and recommends treatment protocols. The Starship Blood and Cancer Centre is an active member of this Group and utilises many of their treatment protocols as standard practice.

[8]                  L will remain an inpatient in Starship Hospital for the first week of treatment and then have at least weekly appointments and infusions for three more weeks prior to a reassessment. Beyond that it is expected the treatment will involve additional rounds of chemotherapy tailored to his initial response.

[9]                  After the initial five cycles of intensive chemotherapy L will take oral chemotherapy medication at home each day and be required to come to the clinic approximately every four weeks for outpatient treatment, a total duration of therapy lasting up to about two and a half years. Throughout this time he will also have lumbar punctures at set intervals to administer treatment into his spinal fluid. This prevents the leukaemia developing in the brain and spine which would otherwise occur.

[10]              The need for blood transfusions arises because both leukaemia and the chemotherapy cause the bone marrow to produce fewer red and white blood cells and platelets. Red blood cells carry oxygen around the body. Having a low level of red blood cells impairs the body’s ability to carry oxygen, which can cause the organs to shut down and lead to death. Low levels of platelets predispose a person to bleeding,

which can be life threatening. Having low platelets could allow an internal bleed into the brain which could be fatal. In addition, a minimum platelet level is required to safely perform the lumbar punctures, the next of which is due on Monday, 2 March 2020.

[11]              The leukaemia L suffers from is a malignancy that, if untreated will certainly lead to death. The only recognised treatment for it is the multi-agent chemotherapy. The positive news is that with treatment in accordance with the protocol L has an excellent prognosis of long-term overall survival in excess of 90 per cent. The proposed therapy is regarded as best practice in New Zealand as well as in Australia and North America.

[12]              L’s case has been reviewed at a multi-disciplinary team meeting and agreement was reached that the proposed treatment (multi-agent chemotherapy) was in his best interests. His treatment will continually be reviewed at departmental and interdepartmental multi-disciplinary meetings.

[13]              Chemotherapy commenced on an urgent basis on Saturday, 22 February 2020 after Dr Prestidge informed L’s parents, S and MD, of the confirmed diagnosis, and following extensive discussion where the implications of chemotherapy in terms of potential adverse effects were explained. Written information about the chemotherapy treatment was also provided to the parents. Both parents gave consent to the administration of chemotherapy, signed consent forms for the treatment and were keen that this be commenced as soon as practicable. Dr Prestidge has seen the parents daily since.

[14]              The issue in the current application arises because, as noted, both the leukaemia and the chemotherapy cause bone marrow suppression. All children in this situation require transfusion with red cells or platelets in order to avoid the life threatening complications of having low red blood cells and platelets. When L’s chemotherapy commenced on 22 February 2020 his blood count was low and it is expected to fall further over the next few days. As a consequence of the leukaemia treatment Doctor Prestidge anticipates L will likely require transfusion with some form of blood product before Monday, 2 March 2020.

[15]              Blood and platelet substitutes are not currently available. In a child such as L, bone marrow suppression would, as a matter of accepted medical practice, necessitate blood or blood product transfusion.

[16]              In Dr Prestidge’s opinion it is likely L will require transfusions of blood products beyond the first week also as a result of both the chemotherapy and the leukaemia itself. Even in later stages when L is receiving oral chemotherapy medications at home he will be at high risk of acquiring infections. Consequently he may require blood transfusion even in the later stages of his treatment.

[17]              Dr Prestidge confirms he has spoken with L’s parents regarding the condition and potential treatment, including the requirement for blood transfusions.

The parents’ position

[18]              The parents have affiliations with the Jehovah’s Witness church and have confirmed they will not consent to the administration of blood or blood product transfusions to L.

[19]              After service of the current application on them, the parents have, with the assistance of a hospital Jehovah’s Witness Liaison Committee member, prepared a statement which they have filed with the Court. In that statement they confirm that Dr Prestidge has explained to them about L’s leukaemia and the appropriate treatment and that, as a result of the chemotherapy, L may need a transfusion of blood and blood products. They note they love their son very much and want the best possible medical treatment for him. They also accept that as part of that treatment he required urgent chemotherapy. However, as Jehovah’s Witnesses, they sincerely believe that blood is sacred and agreeing to accept a blood transfusion would be to break God’s law in Acts 15:28-29 to “abstain from blood”.

[20]              S and MD assure the Court that, apart from not consenting to L being given a blood transfusion, they are fully co-operating with his doctors in every way possible. They appreciate the medical care and assistance being given to L and accept and know the medical team are genuinely concerned about him and his wellbeing.

[21]              S and MD confirm they consent to the chemotherapy treatment except for the transfusion of blood and blood products. They formally ask the Court not to grant the order sought but, if the Court makes an order against their wishes, they understand they must obey the law and will continue to bring L to the hospital for medical treatment.

[22]              They also sincerely ask the Court that if an order is made it be made in a way that assures every effort is exerted in the use of appropriate blood conservation strategies before a blood transfusion is administered and that it assure every effort is made to minimise the administration of blood or blood products.

[23]              In relation to that latter request I note that Dr Prestidge has confirmed in his affidavit that he and the treating team have undertaken additional steps where they are able to, to reduce the need for transfusion including reducing the number of routine blood tests and avoiding surgery for an indwelling central venous catheter.

[24]              Further, while there are established institutional guidelines in accordance with the international practice which stipulate when blood products are required, Dr Prestidge and Dr Tsui also aim to limit the unnecessary use of blood products. Dr Prestidge has spoken to both parents about taking the approach in L’s case not to simply transfuse red blood cells based on a blood result in isolation, but to look closely at other clinical parameters, in an attempt to reduce further L’s need for blood products.

[25]              Dr Prestidge has also confirmed he will consult with L’s parents regarding the need for transfusion as much as possible.

Legal framework

[26]The application is made under s 31 of the Act which provides:

31       Application to court

(1)An eligible person may make an application to a court with jurisdiction under this section for—

(a)an order placing under the guardianship of the court a child who is not married, in a civil union, or in a de facto relationship:

(b)an order appointing a named person to be the agent of the court either generally or for any particular purpose.

(2)In this section, eligible person, in relation to a child, means any of the following persons:

(a)a parent or guardian of the child:

(b)a grandparent or an aunt or an uncle of the child:

(c)a sibling (including a half-sibling) of the child:

(d)a spouse or partner of a parent of the child:

(e)the child himself or herself (who may apply without any litigation guardian):

(f)the chief executive:

(g)any other person granted leave to apply by the court.

[27]                The applicant, the Auckland District Health Board, requires leave in order to bring the application. I grant leave in accordance with s 31(2) of the Act to the applicant, the Auckland District Health Board, to bring the application.

[28]The power of the Court to make the substantive order sought is set out in s 33:

33        Orders of court

(1)A court to which an application is made under section 31 may—

(a)make an order described in section 31(1)(a); or

(b)make orders described in section 31(1)(a) and (b); or

(c)make—

(i)an order described in section 31(1)(a); and

(ii)an order appointing any person whom the court thinks fit to be the agent of the court either generally or for any particular purpose.

(2)An order under subsection (1) in respect of a child ceases to have effect when the first of the following events occurs:

(a)the court orders that the order ceases to have effect; or

(b)the child turns 18 years; or

(c)the child marries or enters into a civil union; or

(d)the child lives with another person as a de facto partner.

[29]Also relevant is s 36(3):

36       Consent to procedures generally

…

(3)If the consent of any other person to any medical, surgical, or dental treatment or procedure (including a blood transfusion) to be carried out on a child is necessary or sufficient, consent may be given—

(a)by a guardian of the child; or

(b)if there is no guardian in New Zealand or no guardian of that kind can be found with reasonable diligence or is capable of giving consent, by a person in New Zealand who has been acting in the place of a parent; or

(c)if there is no person in New Zealand who has been so acting, or if no person of that kind can be found with reasonable diligence or is capable of giving consent, by a District Court Judge or the chief executive.

[30]                   In considering the making of an order under s 31 the paramount consideration is the welfare and best interests of the child as provided by s 4 of the Act:

4        Child’s welfare and best interests to be paramount

(1)The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—

(a)in the administration and application of this Act, for example, in proceedings under this Act; and

(b)in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.

…

[31]                There are a number of cases where similar issues have been considered by this Court.1 In addition the issue has been considered by the Court of Appeal in Re J (An infant): B and B v Director-General of Social Welfare.2 In that judgment the Court

1      Auckland District Health Board v Z (2007) 26 FRNZ 596; Waikato District Health Board v L [2009] NZFLR 83 (HC); Auckland District Health Board v W and W [2012] NZHC 1563; Auckland District Health Board v E [2013] NZHC 2154; and A District Health Board v D [2015] NZHC 304.

2      Re J (An infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134 (CA).

discussed the different and separate rights of the child to life and the parents to manifest their religion and practice. The Court of Appeal said that:3

Every child has the right not to be deprived of life except on such grounds as are established by law and consistent with the principles of fundamental justice (s 8). If the parental right to manifest religion in practice is taken as extending to the right to consent to and refuse medical treatment for a child there is a potential overlap between that right and the child's fundamental right to life. At points of potential conflict, as in circumstances such as those with which we are concerned, we do not accept that the conflict is to be resolved by employing s 5.

And later:4

… we prefer to approach potential conflicts of rights assured under the Bill of Rights Act on the basis that the rights are to be defined so as to be given effect compatibly. The scope of one right is not to be taken as so broad as to impinge upon and limit others.

And:5

We define the scope of the parental right under s 15 of the Bill of Rights Act to manifest their religion in practice so as to exclude doing or omitting anything likely to place at risk the life, health or welfare of their children. In the present context that is consistent also, in the circumstances of this case, with giving effect to s 23 of the Guardianship Act [s 4 of the Care of Children Act 2004] by recognising the paramount interests of the child. It also avoids any approach casting an onus to be discharged in respect of the invasion of the parents' right before the right of the child can be secured. That is not appropriate for reconciling these competing rights.

Decision

[32]              In this case, while respecting the parents’ concerns and noting their opposition to the orders sought, this Court is nevertheless satisfied on the evidence of Dr Prestidge and Dr Tsui that the tests outlined by the Court of Appeal and the requirement that the Court exercise its jurisdiction under s 4 for the welfare of L have been satisfied and the orders sought should be made. The evidence establishes that there is a real, substantial risk that L will require a blood transfusion in the course of receiving the chemotherapy and associated lumbar punctures. The blood transfusions will be necessary to avoid complications and his potential death.

3      At 146.

4      At 146.

5      At 146.

[33]              I am satisfied that it is in L’s best interests that the orders sought by the applicant be made.

[34]              To recognise the position of L’s parents, S and MD, the orders will include an order that they are appointed as general agents of the Court for all purposes other than the consenting to the administration of blood and blood products to L. This Court also directs Dr Prestidge and Dr Tsui to keep L’s parents informed at all reasonable times of the nature and progress of L’s condition and treatment.

[35]              I am not however minded to make any further express order constraining the medical professionals in any further way. I rely on the evidence of Dr Prestidge that he will look closely at clinical parameters in an attempt to reduce the need for blood products and will consult with L’s parents about the need for transfusions as much as possible. I also note his evidence that he will reduce the number of routine blood tests and avoid surgery for the indwelling central venous catheter. I accept that the doctors will, as far as possible and without compromising L’s treatment, take the concerns of L’s parents into account in administering the necessary treatment.

Result

[36]              I make orders in terms of the draft filed, subject to the deletion of 3(i), which, as discussed with counsel, is unnecessary given the express provisions of the Senior Courts (Access to Court Documents) Rules 2017.

Venning J