Parens Patriae Applications – Alive and Well

by | May 3, 2016 | Health Blog

There has been a steady increase in the number of applications being made to Courts seeking the exercise of the parens patriae jurisdiction – a common law doctrine invoked for the protection of persons who are unable to look after themselves. This includes children and those who lack sufficient cognitive ability to make decisions about their own welfare.

In March 2016 the Family Court of WA ordered that a six year old boy with a brain tumour undergo chemotherapy treatment after his parents had refused treatment and indicated that they wanted to pursue alternative therapies. Last week, the Qld Supreme Court ordered that a 12 year old girl may lawfully undergo an abortion when it was considered that this form of medical intervention fell outside the types of procedures for which parental consent could be given.

In the recent WA decision of Director Clinical Services, Child & Adolescent Health Services and Kiszko & Anor [2016] FCWA 19, the parents of a six year old boy had refused to provide consent for the child to undergo chemotherapy and radiotherapy treatment for his brain tumour.  The medical evidence suggested that if combined chemotherapy and radiotherapy was given there was a 50 – 60% change of survival at 5 years.

The child’s mother gave evidence of how the child was distressed by the treatment and would resist going to the hospital. She also set out her experience with a close family member who had suffered and died from cancer. She said it was her intention to trial alternative therapies focussing on nutrition.

The mother said that they (the parents) did not believe that the recommended medical treatment would be in the child’s best interests and said they had moved away from just wanting to delay the decision, to a position of actively rejecting conventional therapy.

The treating doctor at the hospital initiated the application as he was concerned that the parents’ failure to give consent for the proposed treatment was not in the child’s best interests.

In delivering its reasons for decision the Court made clear that it had not discounted the parents’ evidence and acknowledged that parents are in the best position to assess the impact of procedures on their child. However, ultimately it adopted the comments made in Minister for Health v AS (2004) 29 WAR 517 in which Pullin J stated:

The question is not whether to respect the parents’ wishes. The role of the Court is to exercise an independent and objective judgment and balance the advantage or disadvantage of the medical step under consideration. While the parents’ wishes may be relevant, they are not determinative.”

In the decision of Central Queensland Hospital and Health Service v Q [2016] QSC 89, all parties, including the child’s parents, agreed that a termination of her pregnancy should proceed. However, pursuant to the Criminal Code, the procedure would be unlawful unless “authorised or justified by law” and parental consent alone would not avoid this. It was therefore necessary to refer the matter to the Supreme Court.

In considering the matter, the Court accepted evidence from medical, mental health and child safety professionals who all considered that termination of the pregnancy was in the child’s best interests. The Court also took account of the girl’s own views where she stated that she had no wish to be a mother and that she felt she was not fitted for the task. Orders were therefore made on the basis that it was in the girl’s best interests for the abortion to proceed. In arriving at this decision the Court noted that whilst its’ parens patriae jurisdiction clearly extended to Q, it did not extend to her unborn child and therefore this was not a factor which needed to be considered.

The Family Court of WA noted in the Kiszko decision that these types of applications appear to be extremely rare and this was the first matter to be considered by that Court. However, as medical staff gain greater understanding of the options available to them when faced with what appears to be a decision by parents which is not in the child’s best interests, more applications of this kind are to be expected.

Gemma McGrath

Gemma McGrath