The key issue
Whether the Supreme Court of NSW should make orders which would permit the Hospital to administer proposed chemotherapy to a young boy in the face of his parents not being prepared to consent to that treatment.
The defendant is two years and eight-month-old boy with a diagnosis of retinoblastoma.
His parents did not wish to consent to the next step in his treatment – six cycles of chemotherapy – which were unanimously recommended by his treating doctor, supported by collegial consultation among other specialists in the field, and by formal second opinion.
The plaintiffs – the Minister for Health and the Hospital – urgently invoked the parens patriae jurisdiction of the Supreme Court for orders which would permit the proposed treatment to be administered over the parents’ objection. The parents did not object to chemotherapy in and of itself. However, they did not want to put the defendant through more chemotherapy when there was presently no detectable cancer in his body.
The doctor’s opinion was that if the defendant underwent the proposed treatment, then there is only a 10% prospect of a distant recurrence of his cancer. On the other hand, if the proposed treatment was not given, the defendant’s risk of distant disease recurrence was up to 40%. In that eventuality, any treatment would be longer and more toxic than the proposed treatment, and with lower chance of a successful outcome than dealing with microscopic cells that had not yet developed into an active tumour.
The Supreme Court found on the basis of the doctor’s evidence that it was in the defendant’s best interests that he undergo the proposed treatment now, with its attendant discomfort and side effects but very good prospects of success, to avoid a significant prospect of contracting cancer and having to undergo far more intrusive treatment later with considerably less prospects of success.
The parens patriae jurisdiction is an extraordinary jurisdiction which, in a case such as this, has only one criterion: what is in the best interests of the child. The Court in exercising the parens patriae jurisdiction will consider the evidence objectively and apply only the test of what is in the best interests of the child.
The decision in Re Ryder  NSWSC 895 can be read here.