Determining a Child’s Best Interests when Parents Refuse Medical Treatment—CAHS v Kiszko & Anor  FCWA 19
KeywordsParental responsibility Refusal of treatment Consent Best interests of the child
On March 24 2016 the Family Court of Western Australia was called upon to consider whether parents refusing curative medical treatment for their six-year-old son was in his best interests. Unlike the law surrounding adult refusal of medical treatment, where the common law has unequivocally determined that individual autonomy prevails over other competing rights and interests,1 the law around parents refusing medical treatment for a child requires a different approach. In these circumstances, the courts focus on the child’s best interests. This consideration prevails over all other rights and interests and ultimately limits the scope of parental authority (see for example Department of Health and Community Services v JWB and SMB  175 CLR 218; Minister for Health v AS  29 WAR 517; see also Re A (Children) (Conjoined twins: surgical separation)  4 All ER 961). These issues were considered in detail in CAHS v Kiszko  FCWA 19 (Kiszko) with Thackray CJ concluding that the “prospect of the long-term cure” were in the child’s best interests” (¶82) and outweighed the parent’s right to refuse.
Oshin Kiszko, the six-year-old child of Angela Kiszko and Adrian Strachan, was diagnosed by the applicant, Princess Margaret Hospital (PMH), in November 2015 with a “relatively rare brain tumour” that required urgent surgery (¶22).2 Acting on medical advice, his parents consented to an operation to remove the tumour on 3 December 2015. Oshin suffered serious side effects due to the surgery. Thackray CJ did not discuss them in detail and accepted Oshin’s parents description of the range of symptoms and their severity (). The advice from PMH was that to increase, although not guarantee, Oshin’s chance of survival, he required further medical treatment consisting of both chemotherapy and radiotherapy. His parents refused further treatment and PMH sought court approval to proceed with the treatment.
There were several key issues underlying their refusal. Predominantly these centred around quality of life issues Oshin may face during chemotherapy, side effects of the proposed treatment, and potential long term complications (¶51–53). Additionally, Oshin’s mother, a fervent believer in alternative medicine, wanted to try these on her son instead of the conventional treatment regime proposed by PMH (¶29). Finally, concerns about the impact Oshin’s future treatment and care could have on his parents were raised. Oshin’s mother suffered chronic back pain and his father was concerned about potential financial implications of being required to take unpaid leave to care for his son if it was required (¶26–27).
Central to PMH submissions were that current medical evidence and Oshin’s medical reports indicated that if he commenced treatment he had a fifty to sixty per cent chance of survival beyond five years (¶48). If only chemotherapy was commenced, then this figure decreased to thirty per cent. However, for Oshin, these figures were slightly negatively skewed due to the delay in commencing treatment (¶50) and would continue to decrease if treatment was further delayed.
Oshin’s last MRI indicated that the tumour was on the “cusp of massive and irreversible progression” and if this occurred, Oshin would not survive and treatment would be limited to palliative care (¶45). Discussions between Oshin’s parents and his medical team stalled and further advice was sought through referral of the case to an Ethics Committee convened at the PMH. 3 The referral was ordered with a view to assisting the parties to reach common ground regarding Oshin’s best interests without judicial intervention.
Decision of the Ethics Committee
whether alternative therapy instead of conventional medical treatment (chemotherapy and radiotherapy) was ethically justifiable; and
whether curative medical treatment or palliative care was ethically justifiable.4
The EC were steadfast in their decision regarding the first issue. The EC unanimously rejected alternative therapy over chemotherapy. Thackray CJ quoted with approval the findings from the EC who determined that “such an approach [alternative therapy] is not considered a rational approach and is not supported by available scientific evidence … [and] it is ethically indefensible to impose such irrational beliefs on the lives of others” (¶38).
The EC were not as decisive concerning the second issue however. On this point, the EC addressed the issue of lack of unanimity between Committee Members, stating that “from an ethical perspective … a cautious approach to the issue of seeking orders to compel treatment in the absence of parental consent” should be exercised (¶32). In considering the position of both parties, the burdens against benefits equation was applied and the EC ultimately concluded that curative medical treatment proposed by Oshin’s medical team was ethically supportable as the benefits, including the possibility of long-term survival, were ethically justified and this outweighed any burdens. However, the EC qualified this finding indicating that if the scales did tip in the other direction, and the burdens of curative treatment did indeed outweigh the benefits, then conventional palliative care would be ethical (). However, the findings of the EC did little to facilitate obtaining parental consent to medical treatment and PMH urgently sought judicial intervention.
Hearing on 18 March 2016
The Princess Margaret Hospital (PMH) were concerned that Oshin’s parents may remove him from Australia and sought court orders to prevent this (for discussion on why this was an important issue see Thackray CJ at ¶60).The court granted the application without notice to the parents, ordering that Oshin remain in Australia and his parents to surrender their passports and remain at the same address (¶16).
Hearing on 24 March 2016—Issues before the Court
Should the court grant the adjournment sought by the respondent parents?
Does the court have jurisdiction to hear the matter?
Is commencing medical treatment in Oshin’s best interests?
1. Should the Court Grant the Adjournment Sought by the Respondent Parents?
… although this matter is the first case of this nature to come before the court, I consider the law beyond doubt … the involvement of senior counsel would not, in my view, assist me in dealing with the legal issues. (¶12)
Second, the respondents submitted that they intended to introduce expert evidence to counter evidence presented by PMH (¶13). Rejecting this submission, His Honour determined that the evidence the respondents intended to adduce was very vague and unlikely to assist the court (¶15). Furthermore, the two medical practitioners that provided evidence on behalf of PMH (Oshin’s doctor and Head of Department) were undoubtedly experts and their qualifications were not challenged by the respondents (¶13–15).
Taking issue with the vague nature of counsel’s submissions and the urgency of the matter, His Honour added that “I am not persuaded that giving further time to look for unspecified expert evidence justifies the further delay in a decision about what is in Oshin’s best interests” (¶16).
However, His Honour qualified his refusal to adjourn indicating that he was only making orders pertaining to the administration of chemotherapy. His Honours reasoning to defer His decision regarding administration of radiotherapy was primarily based upon the treatment regime proposed by Oshin’s medical team. It was determined by them that the best treatment plan for Oshin was to first commence chemotherapy, followed by radiotherapy scheduled to commence on April 26, 2016 (¶54). This was not the first order treatment plan, as intensive radiotherapy was scheduled to commence first (¶54). However, due to the delay in obtaining parental consent, that treatment regime was no longer available (¶54). Thus the issue regarding administration of radiotherapy was viewed as being not as urgent with His Honour stating that “the commencement of radiotherapy can be the subject of further review by the court” (¶54). Importantly, Thackray CJ qualified His decision to defer the issue of radiotherapy by reference to the well-established legal rule that when the courts intend to “countermand the wishes of a child, a patient or a parent, [this power] is to be exercised sparingly and with great caution” (¶77).5
Therefore, by deferring his decision on the administration of radiotherapy, Thackray CJ also provided an opportunity for Oshin’s parents to present further evidence if available (¶19–20).6 Thus there was clear respect paid to the parent’s right to present argument but this was clearly weighed against the urgency of providing potentially life-saving treatment to Oshin.
2. Does the Court Have Jurisdiction to Hear the Matter?
As this was the first case of its kind to be heard before the Family Court of Western Australia, Thackray CJ considered whether the court had jurisdiction to hear the matter (¶62). His Honour determined that sections 36 and 162 of the Family Court Act 1997 (WA) conferred parens patriae jurisdiction on the Family Court (¶62–65) and that “all jurisdictional requirements of the [Family Court] Act have been met” (¶67).
3. Is Commencing Medical Treatment in Oshin’s Best Interest?
… 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 … (¶76)
It was then a question of considering the evidence before the court. The medical evidence indicated Oshin had approximately a fifty to sixty per cent chance of survival beyond five years if both chemotherapy and radiotherapy were commenced and thirty per cent chance of survival beyond five years if only chemotherapy was administered. However, if no treatment was commenced, Oshin would die within a few months. His Honour also considered Oshin’s quality of life and the side effects that he would endure during treatment. In weighing these considerations, His Honour indicated that the evidence demonstrated there is “a good prospect of a long-term cure” (¶79) and concluded that “I consider the prospect of long term cure … the matter that must most heavily weigh in the decision …” (¶82) and ordered PMH to administer chemotherapy. However, as explained above, the decision regarding radiotherapy was adjourned.
Kiszko affirms the well-established rule that the personal convictions of parents are secondary to the best interests of a child (see also Re A (Children) (conjoined twins: surgical separation)  4 All ER 961; Re D (a minor)  Fam 185). The decision in Kiszko is consistent with similar cases in other jurisdictions where the courts have overruled parents refusing medical treatment for their child on the basis of devout religious beliefs (see for example Women’s and Children’s Health Network Inc v JC  SASC 104; Women’s and Children’s Health Network Inc v M, CN  SASC 16; see also Minister for Health v AS and Anor (2004) 33 Fam LR 33; The Sydney Children’s Hospital Network v X  NSWSC 368). Therefore, Kiszko affirms that the courts will not hesitate to exercise its parens patriae jurisdiction if the result of refusing medical treatment is fatal to the child as the child’s physical well-being is the paramount consideration. The court also demonstrated a willingness to take the extra steps of curtailing the parents’ freedom of movement by ordering them to surrender their passports and remain at their current address. However, once the immediate threat to the child was addressed, the court demonstrated respect for parental rights by delaying the decision regarding further, non-urgent treatment. A final note to make in this unique factual situation is that it deviates from the standard objection to medical treatment on religious grounds, thus inviting the court to consider what a child’s best interests are under different factual circumstances. When considered against the growing role of “alternative” therapies this decision represents significant guidance for future potential disputes.
It is well-established at common law that a capable adult has the absolute right to refuse medical treatment, even if doing so would cause serious detriment to their health see Brightwater Care Group (Inc) v Rossiter  WASC 229; see also H Ltd v J  SASC 176; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88.
In presenting his judgment His Honour did not address the histopathology of the tumour or its anatomical location in the brain. This is likely due to the urgency of the matter and that the hearing date had been advanced at the applicant’s request (see CAHS v Kiszko [FCWA] 19, ¶1, ¶9, ¶21).
The last MRI was conducted after the EC meetings had concluded and indicated that the tumour had grown at a slower rate supporting the findings of the EC and the administration of curative medical treatment instead of palliative care. However, treatment was required urgently for the best long-term outcome (see ¶43–44).
It is necessary to clarify that there were two EC meetings held, and that between these meetings, Oshin’s parent’s stance toward his future medical treatment fundamentally altered. Initially Oshin’s mother was amenable to curative medical treatment and wanted to delay making a decision to try alternative therapies. However, she later indicated that she “actively rejected conventional therapy” (see ¶36–39).
Here Thackray CJ was citing the authoritative statement expounded by Pullin J in Minister for Health v AS (2004) 29 WAR 51, ¶23.
This case was heard again before Thackray CJ on 16 May 2016 where he His Honour declined to order radiotherapy for Oshin. His Honour’s previous decision concerning the administration of chemotherapy was unchallenged (see CAHS v Kiszko  FCWA 34). This development will be subject to further discussion.