Te Whatu Ora Health New Zealand Te Toka Tumai Auckland v A

[2023] NZHC 1864

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-2023-404-1420

[2023] NZHC 1864

IN THE MATTER

of an application pursuant to s 13 of the Care of Children Act 2004 to place a child under

the guardianship of the Court

AND

IN THE MATTER

of M

BETWEEN

TE WHATU ORA HEALTH NEW ZEALAND TE TOKA TUMAI AUCKLAND

Applicant

AND

A and N Respondents

Hearing:	18 July 2023
Appearances:	S Tune for the Applicant Respondents in person
Judgment:	18 July 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 18 July 2023 at 1:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

TE WHATU ORA HEALTH NEW ZEALAND TE TOKA TUMAI AUCKLAND v A and N [2023] NZHC 1864 [18 July 2023]

[1]                 An 18 month old boy (M) needs urgent treatment for a rare malignant tumour (hepatoblastoma). M’s parents consent to treatment under the care of Starship Children’s Hospital but they are Jehovah’s Witnesses and, given their religious beliefs, they will not consent to the administration of blood or blood product transfusions to M.

[2]                 The applicant, Te Whatu Ora Health New Zealand Te Toka Tumai Auckland (TTT), seeks an urgent guardianship order under the Care of Children Act 2004 (Act):

(a)to place M under the guardianship of the Court from 18 July 2023 until completion of his treatment and at the latest until 13 January 2024;1

(b)appointing Dr Mark Andrew Winstanley and Dr Peter James Bradbeer as agents of the Court for the particular purpose of consenting to the administration of blood and/or blood products to M:2

(i)in connection with treatment (including chemotherapy and surgery) of M’s hepatoblastoma where that treatment is consented to by M’s parents; and

(ii)where the administration of blood and/or blood products is in accordance with good clinical practice and in M’s best interests as assessed by Dr Winstanley and Dr Bradbeer;

(c)appointing M’s parents as general agents of the Court for all purposes other than consenting to the administration of blood and/or blood products to M.3

[3]                 The application is supported by a detailed affidavit from Dr Winstanley, consultant paediatric oncologist and M’s primary treating physician, and a supporting affidavit from Dr Bradbeer, consultant paediatric haematologist. One of these doctors in the Starship Blood and Cancer Centre at Starship Children’s Hospital will be responsible at all times for M’s treatment.

1      Care of Children Act 2004, s 31(1)(a).

2      Section 31(1)(b).

3      Section 31(1)(b).

[4]                 Given the urgency and the parent’s affidavits sworn this morning, I convened a hearing at short notice.

Background and medical evidence

[5]                 M was diagnosed with hepatoblastoma on 6 July 2023. Hepatoblastoma is a rare malignant tumour of the liver which is highly curable when treated according to the Children’s Oncology Group protocol followed by the Starship Blood and Cancer Centre. However, any delay in treatment will result in the tumour increasing in size and spreading to other organs, which reduces the treatment’s success rate.

[6]                 M will initially require surgery for the insertion of a portacath (central venous catheter to facilitate administration of chemotherapy). Treatment involves chemotherapy to shrink the cancer to make it small enough to safely undergo liver surgery. Following chemotherapy, it is anticipated that M will be a suitable candidate for liver surgery. M’s case has been reviewed at a multi-disciplinary team meeting and agreement was reached that the proposed treatment (single agent chemotherapy and liver surgery) was in his best interests. His treatment will be continually reviewed.

[7]                 The surgery to insert the portacath carries a risk of bleeding such that a blood transfusion may be necessary. Review of previous cases over the last decade has shown that more than 90 per cent of patients have required blood transfusion support during therapy  in  Starship.  The  liver  surgery  also  carries  a  risk  of  bleeding.  Dr Winstanley says that where appropriate, the clinicians will take measures to minimise the requirement for transfusion but it remains likely that transfusion will be required. In his opinion, it is likely that M may need a transfusion of blood products as an ongoing and ever present risk, while undergoing chemotherapy treatment and that  M  will  face  life-threatening   complications   without   such   a   transfusion. In Dr Winstanley’s view, it would not be responsible medical practice to commence curative chemotherapy without the ability lawfully to administer blood transfusions to M.

[8]                 Ms Tune, for TTT, also assured the Court that the doctors will seek to minimise the need for blood transfusion.

[9]                 Each of M’s parents has filed an affidavit (in the same terms) confirming that they received copies of the Court papers yesterday. They love their son M very much and want the best possible medical treatment for him. They accept that he has hepatoblastoma and that he requires surgical resection of the tumour and chemotherapy (single-agent or multi-agent if the cancer has spread beyond his liver) to stay alive. However, as one of Jehovah’s Witnesses, each sincerely believes that God’s law in the bible prevents them from consenting to a blood transfusion either for themselves or for M. They believe that blood is sacred and agreeing to accept a blood transfusion would be to break God’s law as recorded in the bible. They are also concerned that having a blood transfusion carries significant medical risks.

[10]              They assure the Court that apart from not consenting to M being giving a blood transfusion, they have sought to co-operate fully with M’s doctors in every way possible. They deeply appreciate the medical care and assistance being given to M by the medical team and know that they are genuinely concerned about M and his wellbeing. They fully agree that it is in M’s best interests to receive medical treatment, including the proposed surgical resection of the tumour and chemotherapy, and consent to that treatment except for the transfusion of blood or blood products.

[11]              They ask the Court not to grant the order sought, but if the Court makes an order against their wishes they understand that they must obey the law and so will bring M to the hospital for all appropriate medical treatments. They ask 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. They further ask that, if an order is made, it ensures that every effort is made to minimise the administration of blood or blood products, that authority to approve the administration  of  blood  or  blood  products  be  limited  to  Dr  Winstanley  and   Dr Bradbeer, and is limited in duration to only the period that is absolutely necessary.

[12]              For privacy reasons, they also request that an indefinite non-publication order be issued in respect of this matter.

Procedural matters

[13]              I first address the procedural matters dealt with at the commencement of the hearing.

Non-publication

[14]              TTT sought an order suppressing the details of this application under s 139 of the Act. That section provides that ss 11B to 11D of the Family Court Act 1980 apply to the publication of a report of any proceedings under the Act in any Court. Those sections prohibit, without leave of the Court, publication of a report that includes identifying information where a child is the subject of the proceeding. Identifying information means information relating to proceedings that includes any name or particulars likely to lead to the identification of any applicant or other party to the proceeding, the person who is the subject of the proceeding and any person who is related to, or associated with, such a person.

[15]Identifying particulars of M and his parents must not be published.

[16]              However, I see no need to suppress the identification of the applicant TTT and grant leave accordingly.

Leave to commence by originating application

[17]              TTT sought permission to commence this proceeding by originating application.4 As indicated, it is in the interests of justice to permit this proceeding to be commenced by originating application. I granted leave accordingly.

Service and abridging (shortening) time

[18]              Given the urgency, Ms Tune also sought directions that only M’s parents need be served and abridging time for any notice of opposition. I agreed that no other person need be served.

4      High Court Rules 2016, r 19.5(3).

[19]              Abridging time is sought since the application was only filed and served yesterday, albeit the parents were told late last week that it would be filed, and the time prescribed for any notice of opposition under the High Court Rules has not yet elapsed. As the parents have already sworn affidavits clearly setting out their position and at the hearing they confirmed they did not seek more time, it is in the interests of justice to shorten the time for any notice of opposition to the date of service (last night).      I made an order accordingly. Of course, I have received the parents’ affidavits this morning and accept those affidavits as setting out their position in opposition.

[20]              TTT also seeks leave, pursuant to s 31(2)(g) of the Act, to apply for an order placing M under the guardianship of the Court. Section 31(2) specifies persons who are eligible to apply for an order placing a child under the guardianship of the Court and requires any other person to seek leave to apply. The leave requirement is an additional safeguard. Here, the applicant is TTT, not the clinicians proposed to be appointed as agents of the Court if a guardianship order is made. TTT is charged with M’s medical care and treatment and has a bone fide interest in his welfare. That is a sufficient basis to be granted leave to apply for an order placing M under the guardianship of the Court. Order accordingly.

[21]              Given the information before the Court and the parent’s statement, I do not consider it necessary to appoint counsel for the child under s 7 of the Act.

Guardianship orders – applicable principles

[22]Section 31 of the Act provides as follows:

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.

[23]The High Court and the Family Court have concurrent jurisdiction under s 31.5

[24]Section 33(1) provides:

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.

[25]Section 36(3) relevantly provides:

(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; …

[26]Importantly, s 4(1) of the Act provides:

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

5      Care of Children Act 2004, s 30.

(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)Any person considering the welfare and best interests of a child in his or her particular circumstances –

(a)must take into account –

(i)the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and

(ii)the principles in section 5; …

[27]              As the Court of Appeal confirmed in Re J (An infant): B and B v Director- General of Social Welfare,6 a case also involving parents who were Jehovah’s Witnesses and would not consent to treatment involving the giving of blood, this Court has jurisdiction, where the interests of the child so require, to place the child under the guardianship of the Court and authorise a suitable person (such as a doctor) on its behalf to consent as guardian to medical treatment including by blood transfusion.

[28]              The Court’s jurisdiction is not ousted by s 37 of the Act which governs urgent blood transfusions.7 Section 37 can assist in establishing what must be shown when seeking intervention by the Court – the reasonable opinion of the medical practitioner that a blood transfusion is necessary to save the life of the patient, to prevent injury to physical or mental health or to save the patient from prolonged and avoidable pain and suffering.8

6      Re J (An infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134 (CA) at 142 (under s 9 of the Guardianship Act 1968). In this Court, see for example Auckland District Health Board v S [2020] NZHC 300 and Auckland District Health Board v E [2013] NZHC 2154, [2014] NZFLR 451. The Court’s jurisdiction is unaffected by the recent restructuring of the hospital system such that the applicant is Te Toka Tumai instead of the District Health Board: Te Whatu Ora, Health New Zealand, Te Toka Tumai v C and S [2022] NZHC 3283, [2022] NZFLR 398 at [35].

7      Re J (An infant): B and B v Direction-General of Social Welfare [1996] 2 NZLR 134 (CA) at 142 (relating to the predecessor of s 37, s 126B of the Health Act 1956).

8      At 142.

[29]              Where it is unnecessary for the child to have a blood transfusion at the time of the application, but there is a risk this need will arise in the course of treatment, the Court engages in a two-step analysis:9

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.

… on such applications … 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.

[30]              The Court of Appeal addressed the different and separate rights of the child to life and  the  parents  to  manifest  their  religion  and  practice  contained  in  the New Zealand Bill of Rights Act 1990:10

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…

… 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…

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 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

[31]              In this case, while respecting the parent’s concerns and unwillingness to consent to blood transfusion, I am nevertheless satisfied on the evidence of

9      Re J (An infant): B and B v Direction-General of Social Welfare [1996] 2 NZLR 134 (CA) at 143.

10     At 146.

Dr Winstanley and Dr Bradbeer that there is a real and substantial risk that M will require a blood transfusion in the course of receiving chemotherapy and liver surgery. If so, blood transfusion will be necessary to avoid life-threatening  complications.  As indicated, where appropriate the clinicians will take measures to minimise the requirement for transfusion. The order sought is appropriately limited as to the scope of the two named doctors’ agency to consent and limited as to time.

[32]              In those circumstances, I am satisfied that it is in M’s best interests that the limited guardianship order sought should be made so that the two appointed doctors can consent to the administration of blood and/or blood products to M.

[33]              I note that, as well as appointing M’s parents as general agents of the Court for all purposes other than consenting to the administration of blood and/or blood products to M, the order sought directs the clinicians to keep M’s parents informed at all reasonable times of the nature and progress of M’s condition and treatment.

Result

[34]I make a guardianship order in the following terms:

(a)placing M under the guardianship of the Court from 18 July 2023 until completion of his treatment and at the latest until 13 January 2024;

(b)appointing Dr Mark Andrew Winstanley and Dr Peter James Bradbeer severally as agents of the Court for the particular purpose of consenting to the administration of blood and/or blood products to M:

(i)in connection with treatment (including chemotherapy and surgery) of M’s hepatoblastoma where that treatment is consented to by M’s parents; and

(ii)where the administration of blood and/or blood products is in accordance with good clinical practice and in M’s best interests as assessed by Dr Winstanley and Dr Bradbeer;

(c)appointing M’s parents as general agents of the Court for all purposes other than consenting to the administration of blood and/or blood products to M;

(d)directing Dr Winstanley and Dr Bradbeer to keep M’s parents informed at all reasonable times of the nature and progress of M’s condition and treatment;

(e)reserving leave to the parties to apply to the Court for a review of these orders should this be warranted by any change of circumstances; and

(f)noting that identifying particulars of M and his parents must not be published by virtue of s 139 of the Care of Children Act 2004.

[35]I make no order as to costs.

Gault J

Parties / Solicitors:

Ms S Tune, Te Whatu Ora Health New Zealand Te Toka Tumai, Auckland The Respondents