Auckland District Health Board v Dee [2015] NZHC 304 (27 February 2015)

Last Updated: 2 April 2015

NOTE: ORDER PERMANENTLY SUPPRESSING THE NAME AND ANY DETAIL IDENTIFYING JOHN, HIS FATHER JAMES, HIS STEPMOTHER, HIS SIBLINGS AND JOHN'S TWO RESPONSIBLE CLINICIANS: SEE CARE OF CHILDREN ACT 2004, S 139; FAMILY COURTS ACT 1980, SS

11B, 11C AND 11D; HIGH COURT RULES, RR 3.12, 3.13, 7.19. THESE ORDERS ARE TO EXTEND BEYOND THE MAIN MEDIA TO ANY TECHNICAL, PROFESSIONAL OR STATISTICAL PUBLICATION. ACCESS TO THE COURT FILE IS PROHIBITED WITHOUT THE LEAVE OF A HIGH COURT JUDGE AND WILL NOT BE GRANTED WITHOUT

THE PARTIES BEING HEARD. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-0074 [2015] NZHC 304

IN THE MATTER OF	JOHN DEE
BETWEEN	A DISTRICT HEALTH BOARD Applicant
AND	JAMES DEE Respondent

Hearing:	9, 17 February 2015
Appearances:	P W Le Cren for Applicant M K MacNab for Respondent
Judgment:	27 February 2015

JUDGMENT OF KEANE J [redacted and amended version]

This judgment was delivered by me on 27 February 2015 at 2pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Claro, Auckland

R Wood, Auckland

A DISTRICT HEALTH BOARD v DEE [2015] NZHC 304 [27 February 2015]

[1] On 21 January 2015 a district health board applied for orders, under the Care of Children Act 2004, under which this Court would become the sole guardian of John Dee, a nine year old boy, who within four months of his birth was diagnosed to have HIV.¹ The Board’s sole intent in applying for these orders is to ensure that John’s clinicians at the Board’s hospital are able to continue to manage his medical care and to make sure that he takes his antiretroviral medication daily.

[2] John’s father, James, and his stepmother, as the Board accepts, are highly responsible parents, and it has no wish to displace them. But James has never accepted that there is any such disease as HIV. Nor has he ever accepted that it might lead to AIDS or expose John to other unacceptable risks to his health or to his life. James considers that AIDS results from the antiretroviral medication prescribed to counter HIV. He holds the pharmaceutical industry accountable for promoting HIV to sell its products, and for exposing to AIDS those for whom those products are prescribed.

[3] James also disputes John’s diagnosis. He does not accept that John contracted HIV at birth from his first wife, who died in 2006, and whose death was attributed to tuberculosis and HIV. Before 2010, when John’s antiretroviral medication was discontinued, because it was then clinically clear that James had not been giving it to him, James gave it to him once only to defeat a forthcoming blood test. Yet throughout those years and since John has been outwardly in good health, as has his oldest sibling, who also has HIV, but has never received medication either. John also has another older sibling who does not have HIV.

[4] John’s clinicians accept that he has not, since he was diagnosed with HIV, ever suffered any illness of concern. But, they say, that is simply fortuitous. Because until this year he has never regularly received his prescribed medication, his immunity to disease has reduced, and especially markedly in the last two years. According to an international clinical benchmark he must now resume antiretroviral medication daily to avoid a real risk of serious, or even fatal, illness. Any side effects he might suffer can be managed acceptably. As long as he remains on

_{medication he can anticipate what may well be a normal span of life.}

¹ This name is fictitious, as is the name James Dee given to John’s father.

[5] Presently, John’s care is governed by an agreement to treat, dated 23

December 2014, which James and his present wife entered into reluctantly, when faced with the prospect that otherwise the Board might have applied urgently for the orders it now seeks, and the risk that they might have been effectively displaced as John’s primary caregivers. That agreement is to run for 18 months. But the Board then undertook to apply for equivalent orders, as it has done, to obtain a binding ruling as to what John’s welfare and best interests require.

[6] Early in January 2015 John was admitted to the Board’s hospital to resume the antiretroviral medication last prescribed for him in 2010. He has since returned home to his parents’ care. He is attending school. Each morning a public health nurse visits his home to give him his medication and to ensure that he takes it. John is taking his medication apparently willingly, but James says that John has suffered stomach cramps and a loss of energy. His clinicians continue to monitor him. Despite his present apparent good health, they say, the possibility that his condition might worsen suddenly and extremely can never be discounted.

[7] Since December 2014 James has co-operated responsibly with John’s clinicians. He has honoured the agreement to treat. But James continues to dispute John’s diagnosis and to consider that John’s prescribed medication is uncalled for and dangerous. He wants John’s clinicians to halt his medication as soon as he can be safely weaned off it. He opposes them having any wider ability to manage John’s medical care. If the orders the Board seeks are made, however, he wishes them to cease or to be reviewed within 18 months.

[8] John does not know of his HIV diagnosis, or that James disputes his diagnosis and his treatment. In evidence James himself said that John was too young to know, and that is why no attempt was made before the hearing to elicit John’s views, and why a lawyer for John was not appointed. It was then accepted that John’s interests would be adequately protected and promoted at the hearing by James and by John’s responsible clinicians. The sole issue at the hearing was to be, and was, whether, despite James’ strong and sincere opinion, John’s diagnosis is accurate and his treatment essential.

[9] In the next 18 months, however, John’s clinicians intend to tell him he has HIV and to help him to understand what that means. At that time, James considered at the hearing, John’s views must become relevant. That is why he then contended that any orders made should be for 18 months only, or be subject to an 18 month review. James’ counsel in submissions since has gone further. She has submitted that a lawyer for John should be appointed now to report to the Court what his views are. At the very least she contends John should be represented by his own lawyer at a hearing in 18 months time.

[10] As a result, this application entails two issues. The first is whether this Court should become John’s guardian in order to authorise his clinicians, as the Court’s agents, to ensure that he takes his medication, and to monitor his state of health, and to respond immediately to any crisis or complication. The second is as to the length of any such order and whether within its term it should be subject to any review. It is not in issue that otherwise John should remain in the primary care of James and his stepmother.

Guardianship

[11] James, assisted by his present wife, is currently John’s sole guardian. He has all the duties, powers, rights and responsibilities of a parent.² He is entitled and obliged to decide for John, or to assist John to decide, every important matter affecting John’s life, including whether John should have any medical treatment not routine in nature.³ James’ rights and duties could extend until John attains the age of 18.⁴ But at 16 John will be deemed in law to have an adult’s capacity to decide whether to receive medical treatment, and that is why the orders the Board seeks would cease when John is 16.⁵

[12] Where, as here, a child is unable to consent to medical treatment, and a guardian refuses to consent, this Court may assume guardianship, in order to

_{exercise the rights, powers and duties entailed, acting through agents.}⁶ _{It then has}

² _{Care of Children Act 2004, s 15(1)(a).}

³ _{Section 16(1)(c), (2)(c).}

⁴ _{Section 28(1)(a).}

⁵ _{Section 36.}

⁶ Section 31(1).

the same jurisdiction as it used to have with respect to wards of Court and the same

ability as the Family Court has to make orders concerning a child’s day-to-day care.⁷

Before this Court will assume guardianship, in order to vest in John’s clinicians authority, as agents, to manage John’s clinical care, it must first be convinced that this is the only way to serve John’s welfare and best interests.⁸

[13] In Re J (an infant), the Court of Appeal held that this Court may only intervene to authorise treatment when a child’s condition gives rise to a ‘real or substantial risk’, which calls for that treatment to be given as a matter of ‘accepted medical practice’.⁹ In its fullest sense the question is, as Andrews J more recently

expressed it in Waikato District Health Board v FF and MM:¹⁰

... whether there is a real and substantial risk of (John’s) condition significantly deteriorating if he is not given the treatment, and whether there is a reasonable prospect that his condition will be improved, or at least ameliorated, if he is given the treatment.

The answer turns firstly, and finally, on what accepted medical opinion and practice justifies and requires. But the views of John’s father, James, have still to be relevant though not decisive.

[14] Whether such orders would serve John’s welfare and best interests has to be set against the principles in s 5, one of which is that a child’s care, development and upbringing should rest ‘primarily’ with his or her parents or guardians.¹¹ It must also be set against the first of those principles which, in contrast to all the others, is imperative: ‘The child’s safety must be protected’. So while, as Baragwanath J said in Auckland District Health Board v AZ & BZ the parents’ ‘interests and wishes are of ... very great importance’ they are to be taken into account only ‘as far as is

_{possible compatibly with the predominant interests of the child’.}¹²

⁷ _{Section 34.}

⁸ _{Sections 4, 5(b).}

⁹ _{Re J (an infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134 (CA) at 143.}

¹⁰ _{Waikato District Health Board v FF and MM HC Hamilton CIV-2008-419-001471 at [29].}

¹¹ _{Section 5(b).}

12. Auckland District Health Board v AZ and BZ HC Auckland CIV-2007-404-2260, 27 April 2007 at [20].

[15] James does not contend that he opposes John receiving medication in exercise of his right to freedom of thought, conscience, religion and belief, or his right to act on his beliefs.¹³ But even if he did, his rights would then have to be set against John’s right not to be deprived of life, except on grounds established by law, consistent with the principles of fundamental justice.¹⁴ As the Court of Appeal held in Re J (an infant), these potentially opposed rights are ‘to be given effect compatibly. The scope of one right is not to be taken as so broad as to impinge upon and limit the others’. In that case the Court defined the scope of the parents’ right to manifest their religion and practice ‘so as to exclude doing or omitting anything likely to place at risk the life, health or welfare of their children,’ whose interests were paramount.¹⁵

[16] The child’s views must also be taken into account.¹⁶ The child must be given a reasonable opportunity, and perhaps more than one, to express his or her views, whether directly or through counsel.¹⁷ That, as I have said, did not happen here for the reasons I gave. But John’s views will become relevant, if the Court does assume guardianship until he is 16, once he becomes aware why he is taking medication daily.

[17] John’s right to be heard under s 6 may then have ceased. This ‘proceeding’ may then have been finally determined by orders I make, subject to any appeal. But, if this Court were to become John’s guardian, it would remain responsible for safeguarding his welfare and best interests for the term of the order. If, after John learned of his diagnosis, he had any difficulty with his treatment regime the Court would need to know. At this point I need only note that, if John were then to contest his need for medication, that would be significant. It could not be decisive.

[18] In a recent English case, where a 14 year old child did not believe he had

HIV and refused to take his medication, that decision was held to be beyond his capacity.¹⁸ He was ‘intelligent thoughtful and articulate’. He had ‘received a very

¹³ _{New Zealand Bill of Rights Act 1990, s 13.}

¹⁴ _{Section 8, Care of Children Act, s 5(a).}

¹⁵ _{Re J (an infant): B & B v Director-General of Social Welfare [1996] 2 NZLR 134 at 146 (CA).}

¹⁶ _{Care of Children Act 2004, s 6(1).}

¹⁷ _{Section 6(2).}

¹⁸ NHS Trust v Mr and Mrs A [2014] EWHC 1135 (Fam).

considerable amount of information about HIV and AIDS from a variety of sources’.¹⁹ But the Court accepted unreservedly that he had HIV and was at risk of AIDS and other serious illness. It held that, because he did not accept that to be so, he could not begin to assess what his state of risk was.²⁰ A supervision order was made.

[19] In a still more extreme case, a 16 year old girl was deemed in law to have the capacity to consent to treatment, but her life was at risk from anorexia nervosa, a condition that made her incapable of consenting. The English Court of Appeal intervened, in the exercise of the Court’s inherent jurisdiction, to protect her from herself. That is clearly not this case. But it illustrates the nature and extent of this Court’s jurisdiction.²¹

John’s diagnosis and prognosis

[20] The two issues this application entails are whether this Court should assume guardianship of John, and whether that should continue until he is 16, or be for 18 months only, or be reviewed after 18 months. They both turn on whether John has HIV and whether, unless he is treated with antiretroviral medication, he will be at imminent risk of AIDs or other serious illness.

[21] These two issues can only be resolved on the basis of accepted medical opinion and practice and I accept and rely on the evidence of John’s two primary clinicians, who have been responsible for his treatment since he was four months old. They are paediatric infectious disease specialists at the Board’s hospital approved by the Ministry of Health to prescribe antiretroviral therapy. They are the only two paediatricians in New Zealand who regularly manage children with HIV.

[22] James, I accept, holds his opinions very sincerely and would not have withheld antiretroviral therapy from John without being first convinced that it is uncalled for and dangerous. But, despite his extensive searches of the internet, and

_{he says he has devoted many thousands of hours to them, he is not qualified to}

¹⁹ _{At [72].}

²⁰ _{At [74] – [77].}

²¹ Re W (a minor) (medical treatment) [1992] 3 WLR 758.

express any authoritative opinion as to whether John has HIV, or as to what treatment John may require, or as to whether any side effects are acceptable or dangerous. Nor did he call any medical practitioner, or scientist, qualified to do so. I have, however, taken his concerns into account.

[23] In contrast to James, I accept the clinicians’ evidence that HIV can be reliably identified. It can be cultured and viewed by electron microscopy. It can be seen on the outside of cells. I accept also that in John’s case it was identified when he was four months old by antibody test, by Western Blott test and by polymerase chain reaction test. I accept that these tests differ from each other and that all three are unlikely to give a false positive result. These tests, I accept, then confirmed that at four months of age John had HIV according to accepted international medical standards. All more recent tests have confirmed that to be so.

[24] In contrast to James, I accept that the reliability of those initial results is not put in doubt by the inaccurate way in which James’ first wife was identified in an ESR blood analysis made after she died, which confirmed that she then suffered from HIV. How that came to happen is not in evidence. James’ first wife died while under the care of another district health board. The irregularities have apparently been investigated by the Health and Disability Commissioner with what result I do not know. I accept furthermore that, even if John’s mother were HIV negative, that does not necessarily mean that he must be also; and his own tests have established that since his birth he has been HIV positive. That is what counts.

[25] In contrast to James, I accept the evidence of the clinicians that, unless checked by antiretroviral medication, HIV can evolve into AIDS, which is a more advanced form of HIV. I accept in particular the description of HIV and its destructive potential given by John’s present principally responsible clinician:

HIV virus infects key cells of the immune system known as helper T lymphocytes (CD4 cells) causing increased destruction and decreased production of CD 4 cells. Gradual depletion of CD4 lymphocytes is the hallmark of HIV infection. Therefore HIV damages the immune system, leaving the infected person vulnerable to a variety of infections (called

‘opportunistic’ infections) to indicate that they arise in the setting of immune

impairment). The effect of HIV on the immune system is monitored by measuring the CD4 lymphocyte count in blood. CD4 measures the effectiveness of an individual’s immune system. A healthy immune system

will have a CD4 level of at least greater than 500. Through various mechanisms HIV will gradually lower the CD4 count. This can occur over a period of years and not necessarily in a linear fashion. However, it is inevitable untreated HIV will result in compromised immunity. The level of CD4 predicts an individual’s risk for infection with opportunistic infections as well as other complications of HIV disease. A normal CD4 count (between approximately 500 – 1500 cells/μL) indicates that the immune system has not undergone sufficient damage to put the individual at risk of opportunistic illness.

[26] I accept as well John’s clinician’s evidence that an outwardly healthy child may remain vulnerable to HIV if untreated, because the progress of HIV in children is variable. She says:

In a baby infected with HIV from birth the onset of symptoms if untreated can be variable. Some become ill in the first few months of life whereas others have no symptoms or minor symptoms for up to 10 years, and rarely until adolescence. Although the virus can be latent for a prolonged period even during this time it is not a ‘harmless’ virus. Increasingly studies have demonstrated that even with CD4 counts above 350 – 500 cells/μL HIV positive individuals are at increased risk of other conditions due to chronic HIV replication and infection. These include cardiovascular disease, kidney and liver disease, malignancies, and neuro cognitive decline.

[27] There is, I accept, as she also said in evidence, a consensus between the World Health Organisation, the United States Communicable Diseases Centre and the Paediatric European Network for the Treatment of AIDS that, once a child’s CD4 count drops close to or below 350 cells/μL, antiretroviral treatment is essential. I accept also that since John’s condition was first diagnosed his CD4 count has progressively declined, and in the past two years has fallen below that international bench mark.

[28] After John’s first 12 months of life his CD4 count did at first appear to stabilise. But by February 2007 it had reduced to 360 cells/μL. On 4 April 2007 the Family Court, apparently by consent, assumed guardianship and appointed the Chief Executive of the Ministry of Social Development as its agent to manage John’s medical treatment (as well as that of his oldest sibling). James still had to give John his medication, however, and he only once did so.

[29] Before 12 May 2009, when that order was discharged, John’s CD4 count

fluctuated between 494-552 cells/μL. Then on 20 August 2010, when John’s CD4

count was 391, John was taken off his medication. He was then relatively stable and his clinician feared that if, as was plain from his blood tests, he was receiving it sporadically, that had to stop. It was more harmful to him to receive his medication sporadically than not to receive it at all. Sporadic medication could make his virus resistant to treatment in the future.

[30] In early 2013 John’s CD4 count dropped below 350 cells/μL and there was then a frank impasse. At a clinical meeting with James in August 2013 there was no agreement. At a meeting on 1 October 2014 James said that he would not give John his medication and he admitted for the first time that he had only ever given it to him once. By then John’s CD4 count had dropped to 158. In late 2014, when John was admitted to hospital with an accident related injury, his stepmother did not disclose his clinical history. His clinician was alerted. His CD4 count had dropped to 139. It was against that background that the agreement to treat was entered into. The need for that agreement is self evident.

[31] Finally, I accept that John has been prescribed antiretroviral medication, found over time to be effective and tolerable. I accept also that any side effects John is suffering typically improve after the first few weeks, and that any longer term side effects are able to be managed acceptably and are insignificant when set against the risks to John’s health and life if he were to remain untreated.

Orders

[32] In the result, I am satisfied that the only way to safeguard John’s welfare and best interests, given James’ fixed opposition to John’s diagnosis and treatment, is for this Court to become his guardian until he becomes 16, and I make that order. On the evidence John’s condition will remain unchanged until he is 16 and, indeed, for the rest of his life, as will his need for medication. An order ending after 18 months, or at any other time within the next seven years, is at odds with that clinical reality.

[33] Secondly, I appoint John’s father James, as the Court’s agent, to be responsible for John’s day-to-day care and to exercise all the related rights and powers of a guardian, and to be subject to all the related duties, subject to the

condition that he ensure that John is always available for treatment at any time and

place specified by John’s nominated clinicians.

[34] Thirdly, I appoint the two clinicians, who are named in the application and from whom I heard evidence, to be the Court’s agents to manage John’s clinical care on the following terms:

(a) They may consent to and facilitate the treatment of any of the following specified conditions:

(i) John’s human immunodeficiency virus (HIV);

(ii) Any clinical condition caused or exacerbated by John’s HIV;

(iii) Any clinical condition that they reasonably suspect to be

caused or exacerbated by John’s HIV.

(b) They may act jointly or independently, and may appoint or instruct appropriately qualified third parties to treat John for the specified conditions; and they may delegate their powers and responsibilities to another infectious diseases consultant either temporarily or permanently, provided James is given reasonable notice;

(c) The treatment they may give to John for the specified conditions may include, but is not limited to:

(i) Periodically monitoring John for the specified conditions at outpatient appointments and by blood tests;

(ii) Prescribing for John and administering to him antiretroviral therapy (ART);

(iii) Admitting John to hospital to treat his specified conditions, including any complications of ART;

(iv) Administering ART to John each day by directly observed therapy in John’s home or elsewhere if required;

(v) Prescribing and administering prophylactic antibiotics and other therapy ancillary to John’s treatment for the specified conditions;

(vi) Specifying the place and time at which John must be presented for treatment of the specified conditions;

(vii) Collecting and disclosing information for the purpose of facilitating treatment of the specified conditions.

[35] Fourthly, I set these orders down for review in two years time, in chambers in the first instance at a one hour fixture, on a date in March 2017 to be allocated by the Registrar when this decision is issued, and I direct that:

(a) John’s nominated clinicians are to file and serve 21 days before the

hearing a report describing:

(i) John’s then state of health;

(ii) How willingly John is taking his medication and how well he has tolerated it;

(iii) Any material change in John’s diagnosis, prognosis or

treatment.

(b) A lawyer of senior standing is to be appointed for John in November

2016, to represent his interests, with authority to relay to the Court by memorandum, filed and served 14 days before the hearing, John’s views about his treatment (assuming that by then John has been told by his clinicians of his diagnosis).

(c) James is to file and serve any memorandum he wishes to file, concerning the orders in place, seven days before the hearing.

[36] On the first call of this review in chambers the issue will be whether there is any sufficient reason to revisit the orders in order to safeguard John’s welfare and best interests (as I see it, that is a high threshold having regard to the clinical evidence); and, if such a reason is fairly arguable, what directions are then called for. I anticipate also that if, as a result of the review, the orders continue essentially unchanged, the Court will consider whether to direct any further review.

[37] Fifthly, I reserve to the Board, to James, and to any lawyer appointed for John, assuming a lawyer has been appointed, leave to apply to the Court for an earlier review in case of emergency. I emphasise that the emergency must be real. It must be some unanticipated circumstance or event radically affecting the logic or viability of the orders and John’s welfare and best interests; nothing less.

[38] Sixthly, I make final orders, in place of the present interim orders, suppressing the names and any detail identifying John, his father James, his stepmother, and his siblings, and the names and any detail identifying his responsible clinicians. These orders must be complied with by any technical, professional or statistical publications as well as by the main media. Access to the Court file is also prohibited without leave, and leave will not be granted without the parties being

heard.²²

[39] These last orders are made, relying on this Court’s inherent as well as statutory powers, to ensure that John will continue to be treated confidentially and appropriately, consistently with his age and level of maturity; and to ensure that the privacy interests and clinical needs of other children with HIV, who are being treated

_{as he is, are not put in jeopardy.}

_{P.J. Keane J}

22. Care of Children Act 2004, s 139; Family Courts Act 1980, ss 11B, 11C, 11D; High Court Rules rr 3.12, 3.13, 7.19; Taylor v Attorney-General [1975] 2 NZLR 675.