AUCKLAND DISTRICT HEALTH BOARD v S & MD [2020] NZHC 300

AUCKLAND DISTRICT HEALTH BOARD v S & MD [2020] NZHC 300 [26 February 2020]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-000331[2020] NZHC 300IN THE MATTER of an application pursuant to s 31 of the Careof Children Act 2004 to place a child underthe guardianship of the CourtANDIN THE MATTER of LBETWEEN AUCKLAND DISTRICT HEALTHBOARDApplicantAND S & MDRespondentsHearing: 26 February 2020Appearances: C L Campbell for ApplicantNo appearance for RespondentsJudgment: 26 February 2020ORAL JUDGMENT OF VENNING JSolicitors: C L Campbell, Auckland District Health Board[1] The applicant, the Auckland District Health Board, has applied to the Court fororders:(a) granting it permission to commence a proceeding by originatingapplication;(b) granting it leave to apply for an order that L be placed under theguardianship of the High Court from 26 February 2020 untilcompletion of his chemotherapy treatment and at the latest until 26August 2022;(c) appointing Dr Tim Prestidge and Dr Karen Tsui as agents of the Courtfor the purposes of consenting to the administration of blood and bloodproducts to L:(i) in connection with treatment (including chemotherapy) of L'sB-cell acute lymphoblastic leukaemia where that treatment isconsented to by L's parents S and MD; and(ii) where the administration of blood and blood products is inaccordance with good clinical practice and in L's best interestsas assessed by Dr Prestidge and Dr Tsui;(d) appointing L's parents S and MD as general agents of the Court for allpurposes other than consenting to the administration of blood and bloodproducts to L;(e) directing Dr Prestidge and Dr Tsui to keep L's parents informed at allreasonable times of the nature and progress of L's condition andtreatment;(f) reserving leave to the parties to apply to the Court for review of theseorders if warranted by a change in circumstances; and(g) suppressing details of the application under s 139 of the Care ofChildren Act 2004 (the Act).Background[2] L was diagnosed on 21 February 2020 with B-cell acute lymphoblasticleukaemia. His treatment of chemotherapy commenced as a matter of urgency on 22February 2020. L's parents support the chemotherapy treatment but are unable toconsent to the associated administration of blood and blood products to L on accountof their religious beliefs as Jehovah's Witnesses. The administration of blood andblood products is very likely to be required during the course of treatment for L'scondition.Procedural matters[3] A number of procedural matters arise. First, leave is granted to the applicant,the Auckland District Health Board, to commence this proceeding by originatingapplication. Next, I confirm the allocation of the urgent hearing of the application.[4] The application and accompanying memorandum and affidavits by the medicalprofessionals treating L have been served on the parents. I confirm that service on anyfurther parties is not required. I abridge the usual time for filing a notice of opposition.Given the information before the Court and the parents' response I do not consider itnecessary to appoint counsel for the child under s 7 of the Act. Orders accordingly.Evidence[5] The evidence supporting the application is contained in the affidavits of DrTimothy Prestidge, a consultant paediatric oncologist employed by the AucklandDistrict Health Board at the Starship Blood and Cancer Centre at Starship Children'sHospital and Dr Karen Tsui, also a consultant paediatric oncologist for the applicant,Auckland District Health Board, at Starship.[6] The doctors' evidence confirms that L is a six year old boy living with hisparents S and MD in Auckland. His parents are Jehovah's Witnesses. L presented toStarship Hospital via his family doctor for investigation and management of a largeswelling in his neck which was increasing in size over two weeks. He wasunresponsive to antibiotics. Following further investigations, on Friday, 21 February2020, L was diagnosed with B-cell acute lymphoblastic leukaemia. Acutelymphoblastic leukaemia is a fast growing cancer of white blood cells in bone marrow.The cells circulate through the body in increasing numbers and accumulate in thelymph nodes causing the type of swelling L had. Without treatment this type ofleukaemia is fatal within a few weeks to months.[7] The initial treatment approach for standard risk B-cell acute lymphoblasticleukaemia is internationally established. It involves a multi-agent chemotherapyregime incorporated into the first part of the Children's Oncology Group protocol:AALL1731. The Children's Oncology Group is a large collaborative organisationbased in the United States that studies the treatment of cancer in childhood andrecommends treatment protocols. The Starship Blood and Cancer Centre is an activemember of this Group and utilises many of their treatment protocols as standardpractice.[8] L will remain an inpatient in Starship Hospital for the first week of treatmentand then have at least weekly appointments and infusions for three more weeks priorto a reassessment. Beyond that it is expected the treatment will involve additionalrounds of chemotherapy tailored to his initial response.[9] After the initial five cycles of intensive chemotherapy L will take oralchemotherapy medication at home each day and be required to come to the clinicapproximately every four weeks for outpatient treatment, a total duration of therapylasting up to about two and a half years. Throughout this time he will also have lumbarpunctures at set intervals to administer treatment into his spinal fluid. This preventsthe leukaemia developing in the brain and spine which would otherwise occur.[10] The need for blood transfusions arises because both leukaemia and thechemotherapy cause the bone marrow to produce fewer red and white blood cells andplatelets. Red blood cells carry oxygen around the body. Having a low level of redblood cells impairs the body's ability to carry oxygen, which can cause the organs toshut down and lead to death. Low levels of platelets predispose a person to bleeding,which can be life threatening. Having low platelets could allow an internal bleed intothe brain which could be fatal. In addition, a minimum platelet level is required tosafely perform the lumbar punctures, the next of which is due on Monday, 2 March2020.[11] The leukaemia L suffers from is a malignancy that, if untreated will certainlylead to death. The only recognised treatment for it is the multi-agent chemotherapy.The positive news is that with treatment in accordance with the protocol L has anexcellent prognosis of long-term overall survival in excess of 90 per cent. Theproposed therapy is regarded as best practice in New Zealand as well as in Australiaand North America.[12] L's case has been reviewed at a multi-disciplinary team meeting and agreementwas reached that the proposed treatment (multi-agent chemotherapy) was in his bestinterests. His treatment will continually be reviewed at departmental andinterdepartmental multi-disciplinary meetings.[13] Chemotherapy commenced on an urgent basis on Saturday, 22 February 2020after Dr Prestidge informed L's parents, S and MD, of the confirmed diagnosis, andfollowing extensive discussion where the implications of chemotherapy in terms ofpotential adverse effects were explained. Written information about the chemotherapytreatment was also provided to the parents. Both parents gave consent to theadministration of chemotherapy, signed consent forms for the treatment and were keenthat this be commenced as soon as practicable. Dr Prestidge has seen the parents dailysince.[14] The issue in the current application arises because, as noted, both the leukaemiaand the chemotherapy cause bone marrow suppression. All children in this situationrequire transfusion with red cells or platelets in order to avoid the life threateningcomplications of having low red blood cells and platelets. When L's chemotherapycommenced on 22 February 2020 his blood count was low and it is expected to fallfurther over the next few days. As a consequence of the leukaemia treatment DoctorPrestidge anticipates L will likely require transfusion with some form of blood productbefore Monday, 2 March 2020.[15] Blood and platelet substitutes are not currently available. In a child such as L,bone marrow suppression would, as a matter of accepted medical practice, necessitateblood or blood product transfusion.[16] In Dr Prestidge's opinion it is likely L will require transfusions of bloodproducts beyond the first week also as a result of both the chemotherapy and theleukaemia itself. Even in later stages when L is receiving oral chemotherapymedications at home he will be at high risk of acquiring infections. Consequently hemay require blood transfusion even in the later stages of his treatment.[17] Dr Prestidge confirms he has spoken with L's parents regarding the conditionand potential treatment, including the requirement for blood transfusions.The parents' position[18] The parents have affiliations with the Jehovah's Witness church and haveconfirmed they will not consent to the administration of blood or blood producttransfusions to L.[19] After service of the current application on them, the parents have, with theassistance of a hospital Jehovah's Witness Liaison Committee member, prepared astatement which they have filed with the Court. In that statement they confirm that DrPrestidge has explained to them about L's leukaemia and the appropriate treatment andthat, as a result of the chemotherapy, L may need a transfusion of blood and bloodproducts. They note they love their son very much and want the best possible medicaltreatment for him. They also accept that as part of that treatment he required urgentchemotherapy. However, as Jehovah's Witnesses, they sincerely believe that blood issacred and agreeing to accept a blood transfusion would be to break God's law in Acts15:28-29 to "abstain from blood".[20] S and MD assure the Court that, apart from not consenting to L being given ablood transfusion, they are fully co-operating with his doctors in every way possible.They appreciate the medical care and assistance being given to L and accept and knowthe medical team are genuinely concerned about him and his wellbeing.[21] S and MD confirm they consent to the chemotherapy treatment except for thetransfusion of blood and blood products. They formally ask the Court not to grant theorder sought but, if the Court makes an order against their wishes, they understandthey must obey the law and will continue to bring L to the hospital for medicaltreatment.[22] They also sincerely ask the Court that if an order is made it be made in a waythat assures every effort is exerted in the use of appropriate blood conservationstrategies before a blood transfusion is administered and that it assure every effort ismade to minimise the administration of blood or blood products.[23] In relation to that latter request I note that Dr Prestidge has confirmed in hisaffidavit that he and the treating team have undertaken additional steps where they areable to, to reduce the need for transfusion including reducing the number of routineblood tests and avoiding surgery for an indwelling central venous catheter.[24] Further, while there are established institutional guidelines in accordance withthe international practice which stipulate when blood products are required, DrPrestidge and Dr Tsui also aim to limit the unnecessary use of blood products. DrPrestidge has spoken to both parents about taking the approach in L's case not tosimply transfuse red blood cells based on a blood result in isolation, but to look closelyat other clinical parameters, in an attempt to reduce further L's need for blood products.[25] Dr Prestidge has also confirmed he will consult with L's parents regarding theneed for transfusion as much as possible.Legal framework[26] The application is made under s 31 of the Act which provides:31 Application to court(1) An eligible person may make an application to a court withjurisdiction under this section for—(a) an order placing under the guardianship of the court a childwho is not married, in a civil union, or in a de factorelationship:(b) an order appointing a named person to be the agent of thecourt either generally or for any particular purpose.(2) In this section, eligible person, in relation to a child, means any of thefollowing persons:(a) a parent or guardian of the child:(b) a grandparent or an aunt or an uncle of the child:(c) a sibling (including a half-sibling) of the child:(d) a spouse or partner of a parent of the child:(e) the child himself or herself (who may apply without anylitigation guardian):(f) the chief executive:(g) any other person granted leave to apply by the court.[27] The applicant, the Auckland District Health Board, requires leave in order tobring the application. I grant leave in accordance with s 31(2) of the Act to theapplicant, the Auckland District Health Board, to bring the application.[28] The power of the Court to make the substantive order sought is set out in s 33:33 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 thinksfit to be the agent of the court either generally or forany particular purpose.(2) An order under subsection (1) in respect of a child ceases to haveeffect 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.[29] Also relevant is s 36(3):36 Consent to procedures generally(3) If the consent of any other person to any medical, surgical, or dentaltreatment or procedure (including a blood transfusion) to be carriedout 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 thatkind can be found with reasonable diligence or is capable ofgiving consent, by a person in New Zealand who has beenacting 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 reasonablediligence or is capable of giving consent, by a District CourtJudge or the chief executive.[30] In considering the making of an order under s 31 the paramount considerationis the welfare and best interests of the child as provided by s 4 of the Act:4 Child's welfare and best interests to be paramount(1) The welfare and best interests of a child in his or her particularcircumstances 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 therole of providing day-to-day care for, or contact with, a child.[31] There are a number of cases where similar issues have been considered by thisCourt.1 In addition the issue has been considered by the Court of Appeal in Re J (Aninfant): B and B v Director-General of Social Welfare.2 In that judgment the Court1 Auckland District Health Board v Z (2007) 26 FRNZ 596; Waikato District Health Board v L[2009] NZFLR 83 (HC); Auckland District Health Board v W and W [2012] NZHC 1563;Auckland District Health Board v E [2013] NZHC 2154; and A District Health Board v D [2015]NZHC 304.2 Re J (An infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134 (CA).discussed the different and separate rights of the child to life and the parents tomanifest their religion and practice. The Court of Appeal said that:3Every child has the right not to be deprived of life except on such grounds asare established by law and consistent with the principles of fundamentaljustice (s 8). If the parental right to manifest religion in practice is taken asextending to the right to consent to and refuse medical treatment for a childthere is a potential overlap between that right and the child's fundamental rightto life. At points of potential conflict, as in circumstances such as those withwhich we are concerned, we do not accept that the conflict is to be resolvedby employing s 5.And later:4 we prefer to approach potential conflicts of rights assured under the Bill ofRights Act on the basis that the rights are to be defined so as to be given effectcompatibly. The scope of one right is not to be taken as so broad as to impingeupon and limit others.And:5We define the scope of the parental right under s 15 of the Bill of Rights Actto manifest their religion in practice so as to exclude doing or omittinganything likely to place at risk the life, health or welfare of their children. Inthe present context that is consistent also, in the circumstances of this case,with giving effect to s 23 of the Guardianship Act [s 4 of the Care of ChildrenAct 2004] by recognising the paramount interests of the child. It also avoidsany approach casting an onus to be discharged in respect of the invasion of theparents' right before the right of the child can be secured. That is notappropriate for reconciling these competing rights.Decision[32] In this case, while respecting the parents' concerns and noting their oppositionto the orders sought, this Court is nevertheless satisfied on the evidence of Dr Prestidgeand Dr Tsui that the tests outlined by the Court of Appeal and the requirement that theCourt exercise its jurisdiction under s 4 for the welfare of L have been satisfied andthe orders sought should be made. The evidence establishes that there is a real,substantial risk that L will require a blood transfusion in the course of receiving thechemotherapy and associated lumbar punctures. The blood transfusions will benecessary to avoid complications and his potential death.3 At 146.4 At 146.5 At 146.[33] I am satisfied that it is in L's best interests that the orders sought by theapplicant be made.[34] To recognise the position of L's parents, S and MD, the orders will include anorder that they are appointed as general agents of the Court for all purposes other thanthe consenting to the administration of blood and blood products to L. This Court alsodirects Dr Prestidge and Dr Tsui to keep L's parents informed at all reasonable timesof the nature and progress of L's condition and treatment.[35] I am not however minded to make any further express order constraining themedical professionals in any further way. I rely on the evidence of Dr Prestidge thathe will look closely at clinical parameters in an attempt to reduce the need for bloodproducts and will consult with L's parents about the need for transfusions as much aspossible. I also note his evidence that he will reduce the number of routine blood testsand avoid surgery for the indwelling central venous catheter. I accept that the doctorswill, as far as possible and without compromising L's treatment, take the concerns ofL's parents into account in administering the necessary treatment.Result[36] I make orders in terms of the draft filed, subject to the deletion of 3(i), which,as discussed with counsel, is unnecessary given the express provisions of the SeniorCourts (Access to Court Documents) Rules 2017.__________________________Venning J