Auckland District Health Board v W
[2012] NZHC 1563
•27 June 2012
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE align="center">FILE IS NOT TO BE SEARCHED WITHOUT LEAVE OF A HIGH COURT JUDGE.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-3646 [2012] NZHC 1563
IN THE MATTER OF an application pursuant to section 31 of the Care of Children Act 2004 to place a child under the guardianship of the Court
AND IN THE MATTER OF M
BETWEEN AUCKLAND DISTRICT HEALTH BOARD
Applicant
ANDW AND W Respondents
Hearing: 27 June 2012
Counsel: A M Adams and F J Cuncannon for the Applicant
Respondents in person
Judgment: 27 June 2012
JUDGMENT OF WINKELMANN J
Copies to: Crown Solicitors, PO Box 2213, Auckland 1140
Copy to: W and W, Christchurch
AUCKLAND DISTRICT HEALTH BOARD V W AND W HC AK CIV-2012-404-3646 [27 June 2012]
[1] The applicant is the Auckland District Health Board, being the District Health Board (“DHB”) charged with the care of M. M is a two year old girl who suffers from a congenital disorder, autosomal recessive polycystic kidney disease. As a consequence of that disease her kidneys have been removed, and she is kept alive by means of renal dialysis.
[2] The DHB makes urgent application seeking an order placing M under the guardianship of the Court pursuant to s 31 of the Care of Children Act 2004. The purpose of the application is to obtain consent to medical treatment for M to enable her to have a kidney and liver transplant. Consent is urgently required because there is a narrow window of opportunity for M to have this transplant surgery. She cannot be placed on the donor list until there is consent to the procedure but M’s parents are unable to consent to a necessary element of the treatment involved. M’s parents are Jehovah’s Witnesses and because of their faith are unable to consent to M receiving transfusions of blood or blood products.
[3] The application seeks a range of orders but, in particular: (a) Placing M under the guardianship of the Court;
(b)Appointing M’s two treating physicians (Doctors Kara and Evans) as agents of the Court for the purpose of consenting to the kidney and liver transplants, which will necessarily involve the transfusion of blood and/or blood products in preparation for, during and following the transplants;
(c) Appointing M’s parents as general agents of the Court for other
purposes; and
(d) Reserving leave to the parties to apply.
[4] Section 7 of the Care of Children Act 2004 requires that I appoint a lawyer for M unless satisfied that the appointment would serve no useful purpose. In this
case I am satisfied that there is no need to appoint a lawyer to represent the interests of M. M’s interests are well and truly represented today by her parents (in terms of her general well-being) and in terms of the medical aspect of her care, by the DHB.
[5] The scheme of the Care of Children Act is also such that it is required that I grant leave to the DHB to bring this application. That is a requirement of s 31(2)(g). I grant leave accordingly.
[6] One of M’s doctors has filed a very detailed affidavit which sets out the factual background to this application. Dr Tonya Kara is a Paediatric Nephrologist at Starship Children’s Hospital in Auckland. She is present today at the hearing along with Dr Helen Evans who is a Paediatric Hepatologist. Both are part of the multi- disciplinary team charged with the care of M. The team includes renal, blood, liver and gastroenterology specialists, paediatric intensive care specialists, paediatric surgeons and anaesthetists.
[7] M was born with autosomal recessive polycystic kidney disease which affects the function of the kidneys and her kidneys have been removed. As a consequence of this, she also suffers from a number of other related medical issues including portal hypertension which means that for a kidney transplant to be viable she will also need a liver transplant.
[8] It is apparent from reading the affidavit of Dr Kara both that M’s medical condition is complex and also that she has received a great deal of love and care from her parents and also from the medical team charged with her medical care. She presently receives dialysis but the evidence of Dr Kara is that that is not a long-term treatment option for her because of the risk of infection. M’s spleen has been removed and because of this she is not equipped to fight infections. Without a liver and kidney transplant she will not be able to survive in the longer-term.
[9] The multidisciplinary team has met and discussed M’s case many times this week and as of yesterday agreed that without a liver and kidney transplant M will most likely die from infection within weeks to a couple of months. She will most certainly become so unwell within a few weeks that it will not be possible to
consider her for a transplant. Dr Kara says that at the moment M is relatively well and a transplant is viable. She identifies a small window of opportunity for that transplant which could well only be a matter of a few weeks. In Court today she says that should organs become available for transplant they in turn will only be viable for a short period of time, yet M cannot be placed on the list of patients for organ transplant unless there is consent to the procedure.
[10] M’s parents (also present in court today) have filed a statement in which they record their wishes in relation to this application. They say that they have had the application explained to them and Dr Kara has explained M’s medical condition to them. They accept Dr Kara’s assessment that M requires urgent kidney and liver transplant operations to stay alive. However, they are affiliated with the Jehovah’s Witness Church and are unable to consent to transfusion of blood or blood products to M because of their religious beliefs. Both agree that it is in M’s best interests to receive the proposed kidney and liver transplants and would consent to the operations and associated treatment but for the transfusion of blood or blood products. They say that they understand the nature of the application being made by the DHB, and in particular that it is made in case suitable organs become available and M’s health permits the transplants. They say that they do not oppose such a Court order but that they are unable to consent to any procedure involving blood transfusion.
[11] In Dr Kara’s affidavit she explains that blood transfusions are required not only for the transplant operation, but also will need to be administered to M in advance of the operation. It is also possible that if the organs do not work immediately M will require blood products, perhaps urgently, during the post- operative phase.
[12] As to the prospects for M if she is lucky enough that suitable organs become available, the estimate of the multi-disciplinary clinical team is that M has a greater than a 50 per cent chance that the operation will be successful. If it is successful then M will have a normal life expectancy and quality of life.
[13] The medical team propose that if the orders sought are made, M will immediately be placed on the list of patients awaiting organ donation. She will continue to be reviewed on a daily basis within the Paediatric Intensive Care Unit, with any change to her clinical status needing to be carefully considered. If donor organs are offered, the team will regroup, discuss her current clinical condition at that time and make a group decision as to whether the transplant remains viable. They propose to consult M’s parents throughout.
[14] Dr Kara says the medical team has worked closely with M’s parents to date and she has no doubt that they have acted throughout in M’s best interests but the point has come where there is a critical difficulty for the parents, the conflict between their faith, and what the medical needs of their daughter require of them.
Statutory basis for application
[15] The application is made under s 31(1) of the Care of Children Act. That Act provides:
(1) An eligible person[1] may make an application to a Court with jurisdiction under this section for –
[1] In this case the District Health Board.
(a) an order placing under the guardianship of the Court a child ...
(b) an order appointing a named person to be the agent of the Court either generally or for any particular purpose.
[16] Section 4 of the Act provides that in considering the making of an order under s 31, the paramount consideration is the welfare and best interests of the child. Section 4 provides in relevant part:
4 Child's welfare and best interests to be paramount
(1) The welfare and best interests of the child 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.
(2) The welfare and best interests of the particular child in his or her particular circumstances must be considered.
(3) A parent's conduct may be considered only to the extent (if any) that it is relevant to the child's welfare and best interests.
...
[17] The Court’s power to make an order is set out in s 33 which provides in material part:
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.
[18] Also relevant to this application is s 37 which enables the hospital to provide urgent blood transfusion. During the course of M’s care the hospital has, under the provisions of this section, provided urgent blood transfusions in the course of providing dialysis to M. However, the DHB cannot proceed under s 37 in this case because it is known that a transplant will require the provision of blood products both in preparation for the transplant operation, through the course of the transplant operation and quite possibly after it. In those circumstances the case does not fit within the provisions of s 37 and it is for this reason that the application is brought.
Unless the orders are granted, M cannot be placed on the transplant list because
consent to the procedure cannot be granted either by M’s parents or her doctors.
Discussion
[19] In considering this application, the case of re J [2] is helpful. In that case the Court was dealing with a similar situation in which, because of their religious beliefs, the parents were unable to consent to a blood transfusion which was vital to medical care of a child. The Court described a two-step analysis necessary under the provisions of s 9 of the Guardianship Act (the predecessor of s 31 of the Care of Children Act). That two-step analysis is described as follows:[3]
[2] Re J (An Infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134 (CA).
[3] At 143.
At the first stage it is necessary to assess the likelihood that the condition of the patient will become such that a blood transfusion is to be considered. The second stage is when that condition has developed and the appropriate medical treatment is to be determined.
...[T]here was virtual agreement between counsel as to the appropriate approach where parental rights be overridden. That is that there must be a real or substantial risk that the patient's condition will in the course of medical care be such as, on accepted medical practice, would call for blood transfusion and that in the event that condition develops a blood transfusion will be necessary.
[20] The Court also discussed the approach to be taken when balancing the
parents’ religious beliefs with the medical needs of the child. It said:[4]
[4] At 146–147.
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 [of the New Zealand Bill of Rights Act]. It is not an issue of whether the state has established that action to protect the life or health of a child is a limitation of the parents' right that is prescribed by law and can be justified in a free and democratic society.
...Accordingly 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.
[21] What that means is that, while it is a parents’ right to manifest their religion
(a right preserved to them under s 15 of the New Zealand Bill of Rights Act), that
right is to be defined so as to exclude doing or omitting anything likely to place at risk the life, health or welfare of M. That approach is one which is consistent with recognising the paramount interests of M.
[22] In the case of M, the two step test is clearly met. The making of the orders will mean that M is, if replacement organs become available, subjected to medical procedures (with the prospects of successful operations of more than 50 per cent) that, if successful, will result in M living a normal and healthy life. The alternative is that she will certainly die. On that basis, I am satisfied that it is in her best interests that the orders be made in the form sought.
[23] In putting to one side the religious objections of M’s parents to the blood transfusion, I do not wish to minimise the role or importance of the views of M’s parents since the parents’ continued support and care of M is critical. They play an absolutely central role in her life. However, it is common ground between the parents and the medical professionals that it is in M’s interests that she have the transplants recommended by the multi-disciplinary team. It is also common ground that it is in M’s interests that this application be dealt with at this point so that she is in a position to be placed on the organ donor transplant list. By making the orders which are sought, this resolves for M’s parents what must be an agonising conflict between their firmly held religious beliefs and the pressing needs of M.
[24] I therefore make orders as follows:
(a) Placing M under the guardianship of the Court from 27 June 2012 for a period of six months;
(b)Appointing Dr Tonya Kara and Dr Helen Evans severally as agents of the Court for the purposes of giving consent for and performing treatment on M in accordance with good medical practice for M’s end stage renal failure and associated conditions. This treatment is to include liver and kidney transplants and all associated pre and post- operative care including the transfusion of blood and/or blood
products as necessary in preparation for, during and following such transplants.
(c) Appointing M’s parents as general agents for the Court for all
purposes other than those referred to in (b) above; and
(d)An order directing Dr Kara and Dr Evans to keep M’s parents informed at all reasonable times of the nature and progress of M’s condition and treatment.
[25] I also record that publication of any details identifying M and her parents is suppressed by virtue of the provisions of s 139 of the Care of Children Act 2004.
[26] I direct that the Court file is not be searched without the leave of a Judge.
[27] Because of the urgency involved in this case, leave is reserved to any party to apply at short notice should further direction or orders be required.
Winkelmann J
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