The Hospital advised that the outcome of the chemotherapy had been pleasing but further chemotherapy alone would not save Oshin’s life and that a high level dose of radiotherapy was required to give him the best chance at survival.

On this occasion Oshin’s parents had obtained a report from Professor Kellie, a specialist paediatric oncologist in Sydney. The report discussed the likely side effects of radiotherapy in young children and focused on quality of life issues rather than extending survival. Whilst not critical of the treatment recommendations made by the Hospital, Professor Kellie stated that given the likely side effects of radiotherapy, in his experience “at least a substantial minority” of parents would opt for chemotherapy only treatment when given this as an option, stating that he would respect this decision for children aged between 3 and 6 at the time of diagnosis (Oshin was 5 years old when diagnosed).

The Court noted that Professor Kellie placed greater emphasis on the long-term quality of life of Oshin, whereas the PMH doctors placed greater emphasis on the maintenance of life itself. The Court recognised that in doing so, the PMH doctors properly recognised that people with disabilities, even severe disabilities, can enjoy what they believe to be a good quality of life. Oshin’s parents however, had confirmed their deeply held belief that quality of life should be prioritised over its duration.

Ultimately the Court stated at [65] and [68]:

It seems to me that there are two social, moral or ethical questions involved. The first is whether greater emphasis should be placed on life itself or on the quality of the life. The second question is whether the first question should be answered by me as the representative of the state or by the parents, who in every other respect are permitted to make decisions on behalf of their child who is too young to make decisions for himself…

…Decisions must now be made for Oshin against the background of conflicting opinions from eminently qualified medical specialists. Both opinions are carefully considered, and neither can be said to be wrong. The medical specialists have respect for the opinion of the other, but they disagree as to the central issue of whether radiotherapy treatment, with all that entails, both positive and negative, is the best option for Oshin. In the absence of a consensus of qualified medical opinion, there is, in my view, no role for the state in directing the parents to act in accordance with one entirely valid opinion in preference to another. My view is reinforced by the fact that at least in Professor Kellie’s clinical experience, although it is not the experience of the doctors at PMH, a substantial minority of parents would follow the course adopted by Oshin’s parents.

The decision is Director Clinical Services, Child & Adolescent Health Services and Kiszko & Anor [2016] FCWA 34.