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Key decisions

  • Director Clinical Services, Child & Adolescent Health Services & Kiszko & Anor [2016] FCWA 19
  • P v Child Support Registrar [2015] FCA 116
  • Masoud [2016] FamCAFC 24

Children – Family Court of WA subjects child to chemotherapy against parents’ wishes

In Director Clinical Services, Child & Adolescent Health Services & Kiszko & Anor [2016] FCWA 19 (24 March 2016) Thackray CJ of the Family Court of WA heard an application filed by Princess Margaret Hospital (PMH) on 18 March 2016 for an order against the wishes of the parents that their child Oshin (who had become ill in December 2015 and was to turn six on 1 April) be required to undergo chemotherapy and radiotherapy. The hearing was listed urgently due to PMH’s expression of concern that the parents may remove the child from Australia for other treatment and was preceded by an ex parte Watch List order being made by a magistrate. The parents were given 24 hours in which to secure legal representation (at [9]). The father appeared in person and an application by the mother’s solicitor for an adjournment to brief senior counsel and adduce expert evidence as to appropriate alternative treatment was denied (at [11]-[16]).

The child was diagnosed with a brain tumour which was removed by PMH on 3 December 2015 with the parents’ consent although the mother deposed to being ‘disturbed about Oshin’s reaction to the surgery’. The father in court said that the child had been having ‘hysterical fits’ and that ‘the anaesthetists … were quite disturbed at Oshin’s behaviour after his last wake up from the … anaesthetic’. The intention of the mother (who had studied naturopathy) was to trial alternative therapies (at [28]-[29]) and PMH’s Ethics Committee ‘was “a little divided” on the question of whether there should be active therapy’ (at [31]). The Court referred to the mother’s evidence that the family was feeling pressured by a ‘dismal prognosis’ and that ‘they felt that the doctors were trying to frighten them into complying with treatment’ (at [36]). The Court said (at [48]):

‘Certainly … there has been fairly consistent advice that if the combined radiotherapy and chemotherapy regime is attempted, studies indicate that there is a 50 to 60 per cent chance of survival after five years. This is the period at which it might be considered that there had been a “cure”. If chemotherapy only is attempted, then the survival rate might be 30 per cent after five years.’

The Court added that ‘[m]ost significant for the parents to take into account is all the suffering that Oshin will have to go through if he does have the chemotherapy and then the radiotherapy’ (at [51]) and that ‘[p]arents … are probably in the best position to assess the impact of procedures on their child’ (at [53]) but that ‘parental power is not unlimited’
(at [73]).

The Court (at [76]) applied Minister for Health v AS [2004] WASC 286, citing the following ‘critical statement’ by Pullin J:

‘Where faced with the stark reality that the child will die if lifesaving treatment is not performed, which has a good prospect of a long-term cure, it is beyond doubt that it is in child’s best interests to receive that treatment … ‘

The Court continued (at [78]):

‘ … The evidence makes clear, beyond all doubt, that Oshin will die within a few months if measures are not taken to prevent his death. The evidence indicates that there is about a 30 per cent prospect of survival after five years if he undertakes the chemotherapy that could commence tomorrow.’

Before ordering that chemotherapy commence the Court added (at [80]):

‘It is equally true to say that there is a prospect that there will not be a cure, and I do not proceed in any way on the basis that there is any guarantee of a cure. In fact, there is a high prospect that there will not be a cure … ‘

Also see at [2016] FCWA 34 the Court’s decision delivered 20 May 2016 as to PMH’s application for an order for radiotherapy.

Editor’s note – cf. Re: Lucy (Gender Dysphoria) [2013] FamCA 518 in which it was held that the treatment of a 13 year old child with gender dysphoria, by injections of a drug called Lucrin, to stay the progress of puberty did not require the court’s approval (ie came within the scope of parental responsibility or in that case – as both parents were deceased – State guardianship). Murphy J in that case (at [87]) referred to Rule 4.09 of the Family Law Rules (applicable in WA via Rule 4(1) of the Family Court Rules) which ‘provides a list of matters upon which evidence “must” be given in applications for a “medical procedure”’.

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