Auckland District Health Board v E [2013] NZHC 2154 (22 August 2013)

Last Updated: 5 September 2013

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3906 [2013] NZHC 2154

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 A

BETWEEN AUCKLAND DISTRICT HEALTH BOARD

Applicant

AND E Respondents

Hearing: 22 August 2013

Appearances: A M Adams and H H Ifwersen for applicant

Judgment: 22 August 2013

_{JUDGMENT OF WINKELMANN J}

_{MeredithConnell, Auckland}

Auckland District Health Board v E [2013] NZHC 2154 [22 August 2013]

Introduction

[1] The Auckland District Health Board (the hospital) makes urgent application under s 31 of the Care of Children Act 2004 (the Act) for an order placing A under the guardianship of the Court, commencing today and continuing for a period of approximately nine months. If granted, the application will enable A to receive blood transfusions that are likely to be required during the course of medical treatment.

[2] A is a 10 month old girl. She has very recently been diagnosed as suffering from neuroblastoma (an extracranial solid cancer) and widespread metastatic disease (the spreading of the cancer to tissue outside of the tumour). Her condition requires urgent treatment. She commenced chemotherapy on 16 August 2013. After completion of chemotherapy she will require surgery to remove the tumour in her chest. A’s doctors assess that she may require a blood transfusion at any time both because of her illness, and because of her treatment.

[3] A’s parents have consented to the administration of chemotherapy and it appears likely that they will also consent to the proposed surgery when the time arises. However, they are Jehovah’s Witnesses and, as a result of their faith, they are unable to consent to A receiving blood transfusions.

[4] The hospital therefore seeks orders:

(a) Placing A under the guardianship of the Court.

(b) Appointing three of A’s treating physicians (Doctors Stephen Laughton, S and Nyree Cole as agents of the Court for the purpose of consenting to blood and blood product transfusions in connection with treatment of A’s neuroblastoma and widespread metastatic disease. The orders sought are limited to blood transfusions in connection with treatment consented to by A’s parents, and also where a transfusion is in accordance with good clinical practice and in A’s best interests as assessed by the treating physicians.

(c) Appointing A’s parents as general agents of the Court for all other purposes.

(d) Requiring the treating physicians to keep A’s parents informed at all reasonable times of the nature and progress of A’s condition and treatment.

(e) Reserving leave to the parties to apply for a review of the orders should circumstances change.

[5] The application has been served on A’s parents. I am satisfied that there was no need to serve the application on any other party. Because this application has been brought as a matter of urgency, the hospital has not given the usual period of notice of the application to the parents. I am satisfied that it is necessary to make orders abridging the time for the filing of an opposition. In this regard I note that A’s parents do not take issue with the notice they have received and I am satisfied that they are not prejudiced by the short notice.

[6] I am also satisfied that there is no need to appoint a lawyer to represent the interests of A in this proceeding. Her interests are adequately represented by the hospital in terms of her medical care in connection with blood transfusion, and by her parents in respect of the rest of her medical care and general welfare.

The evidence

[7] A’s primary treating physician, Dr Laughton, has filed a detailed affidavit setting out the factual background to the application. Dr Laughton is a consultant paediatric oncologist in the Starship Blood and Cancer Centre at Starship Children’s Hospital (Starship). An affidavit has also been filed by Dr Nyree Cole, a consultant paediatric haematologist at Starship. Dr Cole works with Dr Laughton, and one or other of them will be responsible most of the time for A’s treatment. Dr Cole is included in the orders sought so that she may step in for Dr Laughton if he is unavailable at any time.

[8] Another affidavit has been filed by Dr S, a consultant paediatrician at a hospital near to where A resides. It is likely that A will return home in between cycles of chemotherapy. Dr S therefore seeks the ability to consent to blood transfusions to cover the possibility that consent may be required by after hours staff at the hospital where she works, as well as in the unlikely event of both Dr Laughton and Dr Cole being unavailable.

[9] A first became unwell a month ago and was admitted to her local hospital for investigation. On 9 August, a large tumour was discovered on the right side of her chest. She was transferred to Starship for a biopsy of the tumour and her bone marrow, to establish a diagnosis. By the time the biopsy was to be performed, her red blood cell count had fallen to a level considered life-threatening in the context of providing safe anaesthetic, and so she was given a red cell transfusion without parental consent. Because it was an emergency situation, the doctors were able to do

this without parental consent.1 Following the biopsy, A was diagnosed with

neuroblastoma, and stage four widespread metastatic disease involving the bone and bone marrow. She has what is regarded as an intermediate risk disease.

[10] Dr Laughton’s evidence is that the standard treatment for intermediate risk neuroblastoma will involve eight cycles of chemotherapy. Following that, an attempt will also need to be made to surgically remove the tumour in A’s chest. This will not be carried out until after chemotherapy, to enable the tumour to shrink in size, making the surgery safer and increasing the chances of success. He expects that this treatment will be completed within nine months.

[11] A blood transfusion will likely be necessary because chemotherapy lowers the bone marrow’s production of blood cells and platelets. A’s ability to produce blood cells is further compromised by the fact that the neuroblastoma has spread to her bone marrow. She is also at small risk of sudden decline in blood count as a

_{result of bleeding into her tumour.}

1 Emergency transfusions may be undertaken if the threshold set out in s 37 of the Care of the

Children Act is met. There is no issue that it was in this case.

[12] In light of all these factors, and A’s need for major surgery, Dr Laughton anticipates that she will almost certainly require a transfusion of some form of blood product during treatment. He has considered other less invasive methods of meeting this need, and with the consent of A’s parents, she has been receiving some iron supplements to boost her red blood cell count. Dr Laughton also explains that there is the possibility of administering a hormone which stimulates the bone marrow to produce more red blood cells, reducing the requirement for transfusion. However, his evidence is that this hormone may increase a patient’s risk of developing clots. As A is already at risk of developing clots, he does not wish to increase this risk further by use of the hormone. He is also of the view that the potential benefit of this hormone is likely to be minimal as the cancer has already spread to A’s bone marrow. Dr Laughton’s evidence is that a blood transfusion will probably be required, and in a case such as A’s, accepted medical practice would be to administer a transfusion.

[13] The risk of A requiring a blood transfusion increases as time passes. Given the likely need for a blood transfusion and the life-threatening complications A will face without such a transfusion, Dr Laughton expresses the opinion that it would not be responsible medical practice to continue chemotherapy or plan the required surgery without the ability to lawfully administer blood transfusions. If A is not treated, Dr Laughton anticipates that she will die within weeks or months. With treatment, however, A has an excellent prognosis, with a long-term overall survival rate in excess of 90 per cent. The treatment is expected to be completed within nine months. The duration of the orders sought is therefore until completion of the chemotherapy and surgical procedures, and at the latest 22 May 2014.

[14] Both Dr S and Dr Cole agree with Dr Laughton’s evidence. They explain how they will work with Dr Laughton in respect of the care of A. Dr S says that prior to consenting to the administering of blood and/or blood products to A, she would discuss this step with either Dr Laughton or Dr Cole at Starship. Dr Cole says that she would consent to the administering of blood and/or blood products to A in accordance with the criteria set by Dr Laughton as her oncologist.

[15] A’s parents have each filed statements in which they record their views in

relation to this application. They confirm that they have received copies of the

application and the affidavits in support, as well as a memorandum of counsel seeking directions and a memorandum in support of the application. They confirm that Dr Laughton has explained A’s medical condition to them, as well as the fact that the appropriate treatment is chemotherapy and surgery and that, as a result of that treatment, A will likely need a blood transfusion.

[16] Both accept that A requires urgent chemotherapy and may require surgery in order to stay alive. They agree that it is in A’s best interests to receive treatment, including chemotherapy and potentially surgery, and they consent to that treatment except for the transfusion of blood and blood products. They say that they understand the nature of the application before the Court; they do not oppose the making of the orders set out in that application, but they are unable to consent to the transfusion of blood and blood products to A by reason of their affiliation with the Jehovah’s Witness Church.

Relevant principles

[17] This application is made under s 31 of the Act, which provides in relevant part:

(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.

[18] Section 31(2) lists those who are “eligible persons”. That list includes any person granted leave to apply to the Court. The hospital requires leave in order to bring this application. I grant leave to the hospital to bring the application in accordance with s 31(2)(g) of the Act.

[19] The Court’s power to make an order is set out in s 33, as follows:

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.

[20] Also relevant is s 36(3) which provides:

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; or

(b) if there is no guardian in New Zealand or no guardian of that kind can be found with reasonable diligence or is capable of giving consent, by a person in New Zealand who has been acting in the place of a parent; or

(c) if there is no person in New Zealand who has been so acting, or if no person of that kind can be found with reasonable diligence or is capable of giving consent, by a District Court Judge or the chief executive.

[21] In considering the making of an order under s 31 the paramount consideration is the welfare and best interests of the child as provided by s 4 of the Act. The relevant part of s 4 provides:

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.

(4) For the purposes of this section, and regardless of a child's age, it must not be presumed that placing the child in the day-to-day care of a particular person will, because of that person's sex, best serve the welfare and best interests of the child.

(5) In determining what best serves the child's welfare and best interests, a Court or a person must take into account—

(a) 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

(b) any of the principles specified in section 5 that are relevant to the welfare and best interests of the particular child in his or her particular circumstances.

...

[22] Finally, I address the provisions of s 37. By providing doctors acting in emergency situations with immunity from civil suit, criminal or disciplinary proceedings s 37 enables the hospital to provide urgent blood transfusions. This section has been used by the hospital to provide a transfusion to A in order to carry out the biopsy of her tumour. However, it would not be appropriate for the hospital to simply rely on s 37 in the longer term for A’s treatment because it is known that a transfusion is highly likely to be required in the course of chemotherapy and surgery. The hospital has therefore acted responsibly in bringing the present application. If the application is granted and the three doctors are appointed as agents of the Court for the limited purpose sought, they will be able to provide consent for the administering of blood and/or blood products under s 36(3)(a) of the Act.

[23] The leading case on such applications is Re J (An Infant): B and B v Director- General of Social Welfare.2 That case concerned a similar situation to the present

_{case, in that a child required a blood transfusion, and the parents were unable to}

2 Re J (An Infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134 (CA).

consent by reason of their religious beliefs. The Court described a two-step analysis necessary under s 9 of the Guardianship Act 1968 (which was the predecessor to s 31 of the Act). The Court of Appeal said:3

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.

Once it emerged in the course of argument that a two-step consideration may arise on such applications there was virtual agreement between counsel as to the appropriate approach where parental rights are to 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.

[24] The Court also discussed the potential conflict between parents’ religious

beliefs with the medical needs of the child, saying:4

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. 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.

[25] Therefore, while parents have a right, recognised by s 15 of the New Zealand Bill of Rights Act 1990, to manifest their religion, that right does not allow acts or omissions likely to place A’s life, health or welfare at risk. Such an approach is consistent with s 4 of the Act.

[26] In this case, it is clear that the test set down in Re J has been met. The evidence establishes that there is a real or substantial risk that A will, if accepted and best medical practice is followed, require a blood transfusion in the course of receiving chemotherapy and possibly surgery. A blood transfusion would be

_{necessary to raise a dangerously low blood count, and thus avoid death. If the orders}

3 _{At 143.}

4 At 146-147.

are made, treatment could responsibly continue, and A would have approximately a

90 per cent chance of long-term survival. If treatment continues without the ability to lawfully administer blood transfusions, there is a high risk that A will develop life threatening complications. If treatment is discontinued altogether, the evidence indicates that she will die in the reasonably short term.

[27] I am therefore satisfied that it is in A’s best interests that the orders be made in the form sought. I note that the orders confine, so far as is possible in the circumstances, the displacement of the parents’ decision making in respect of the care for A. Her parents are able to make decisions in connection with the principal part of A’s treatment, namely the chemotherapy and surgery, and their role in respect of all other aspects of A’s day to day care remains unaffected.

[28] The importance of A’s parents’ views and feelings in respect of A’s treatment is reflected in the fact that they will be appointed as general agents of the Court for all purposes other than consenting to the administration of blood and blood products in the course of treatment where they have consented to that treatment. Their ongoing support and care for A is crucial, and the making of these orders, I hope, resolves the difficult position they presently find themselves in.

[29] Accordingly I make orders in terms of the draft as filed in Court today and signed by me as follows:

(a) Granting the Applicant permission, pursuant to r 19.5(3) of the High

Court Rules, to commence this proceeding by originating application.

(b) Granting the Applicant leave, pursuant to s 31(2)(g) of the Care of Children Act 2004, to apply for an order that A be placed under the guardianship of the High Court.

(c) Placing A under the guardianship of the Court from 22 August 2013 until completion of her chemotherapy and surgical procedures and at the latest until 22 May 2014.

(d) Appointing Dr Stephen Laughton, Dr Nyree Cole and Dr S severally as agents of the Court for the purpose of consenting to the administration of blood and blood products to A:

(i) in connection with treatment (including surgery) of A’s neuroblastoma and widespread metastatic disease where that treatment is consented to by A’s parents; and

(ii) where the administration of blood and blood products is in accordance with good clinical practice and in A’s best interests as assessed by Dr Laughton, Dr Cole or Dr S.

(e) Appointing A’s parents as general agents of the Court for all purposes other than the consenting to the administration of blood and blood products to A.

(f) Directing Dr Stephen Laughton, Dr Nyree Cole and Dr S to keep A’s parents informed at all reasonable times of the nature and progress of A’s condition and treatment.

(g) Reserving leave to the parties to apply to the Court for a review of these orders should this be warranted by any change in circumstances.

[30] I record that the identity of A is suppressed by virtue of s 139 of the Care of Children Act. So too are the names of A’s parents and their addresses, and the identity of Dr S (as potentially identifying particulars for the purposes of s 139).

[31] In accordance with r 3.12 of the High Court Rules there may be no search of the Court file without leave of a Judge.

Winkelmann J