Keywords: children; sick; cancer; brain tumour; medical treatment; medical intervention; alternative therapies; naturopathy; parental power; parent’s wishes; parens patriae; best interests of a child; Marion’s case; good prospect of long term cure; palliative care; airport watch list.
The highly publicised case of Director Clinical Services, Child & Adolescent Health Services and Kisko & Anor  FCWA 19 (24 March 2016) was heard in the Family Court of Western Australia.
The matter was heard by Chief Judge Thackray on an urgent basis, and revolved around a sick child (“Oshin”) who had a brain tumour. With standard medical intervention the child had a 50% chance of survival after 5 years. Without treatment it was certain that he would die in a matter of months. The parents, however, objected to treatment based on an underlying belief that the child would suffer. The Princess Margaret Hospital believed it was in the best interests of the child that he have the standard treatment and applied to the Court to make this order.
5 year old Oshin became ill sometime in November 2015. The parents took Oshin to the doctors on several occasions and were referred to the Princess Margaret Hospital (“PMH”). Oshin was severely ill and medical tests revealed that he had a brain tumour.
The medical advice to the parents was that Oshin required urgent surgery to attempt to remove the brain tumour. The parents accepted this advice and consented to surgery. On 3 December 2015 Oshin underwent surgery to remove the brain tumour. The surgery removed the bulk of the brain tumour but there were side effects. The parent’s found the side effects and impact of the surgery on Oshin to be very troubling and they had concerns about the amount of time it took for Oshin to recover.
Parents Refusal for Standard Treatment
During Oshin’s recovery from the surgery, it was recommended that he receive treatment including both chemotherapy and radiotherapy. However, Oshin’s parents disagreed with this course of action based on Oshin’s reaction to the surgery. The PMH referred the matter to an Ethics Committee for further consideration and direction.
The Ethics Committee advised that its decision had to reflect what was in the best interests of the child. It concluded that at times it might be necessary to limit parental autonomy to act in the best interests of the child. To assist in considering what was in the best interest of a child, the committee proposed that decisions should be based on the burdens and benefits of treatment to the child.
On 16 February 2016 and 17 March 2016 Oshin underwent medical resonant imaging. The observations from these procedures revealed that the brain tumour was proceeding in a linear path rather than spreading in an explosive like pattern. Based on this information, the doctors involved in Oshin’s treatment concluded a standard approach to treatment was appropriate rather than a palliative approach. Without this treatment, the Committee thought that Oshin would die.
Based on this advice and the parents continuing refusal to consent for Oshin to receive treatment, the PMH commenced proceedings for a court to determine what is in the best interests of the Oshin.
In order to decide upon the matter before it, the court must have jurisdiction. Oshin’s parents were not married and were in a de facto relationship. In the WA jurisdiction, de facto matters are dealt with under the Family Court Act 1997 (the “Act”) of Western Australia and not the Commonwealth Family Law Act 1975.
Section 132 of the Act provides that a court has jurisdiction under the Act to make orders relating to the welfare of the child and that regard must be had to the best interests of the child as the paramount consideration. The judge continued on to say these provision confer the parens patriae (parent of the nation) jurisdiction of the Western Australia Supreme Court on the Family Court of Western Australia.
Who Make Bring an Action in the Best Interests of a Child?
According to section 185(2) of the Act the following people may apply to the court for it to exercise its jurisdiction to act in the best interests of the child:
- either or both parents;
- the child;
- a grandparent; or
- any other person concerned with the care, welfare or development of the child.
Court’s Approach to Order Treatment for Child with Life Threatening Cancer
The evidence provided to the court based on expert medical opinion was that Oshin’s chances of survival if immediate curative treatment was provided could be:
- If only chemotherapy was provided, 30% after five years; and
- If both chemotherapy and radiotherapy were provided, 50% after five years.
The Court referred to the High Court case of Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) for assistance in its determination. This case found that parents have an implicit power to consent to medical treatment for a child incapable of providing consent.
The Court also referred to the case of Minister for Health v AS (2004) 29 WAR 517, and the decision in that case that “protection of the child should be evaluated above all other interests, although those other interests should not be disregarded” and that the court’s power should be exercised “with great caution”.
The Court considered that while parents almost always act in the best interests of a child, that they may face great difficulty is seeing beyond the immediate circumstances of the child to the long term future especially when faced with such difficult circumstances.
In this case, Oshin faced certain death if he did not receive treatment. If he did receive treatment he had a 50% chance of surviving past 5 years and potentially being cured. The Court determined that it would be in the best interests for Oshin that he undertake the standard curative approach of treatment. The Court found that “the prospect of the long-term cure is the matter that must most heavily weigh in the decision”.