TE WHATU ORA HEALTH NEW ZEALAND TE TOKA TUMAI AUCKLAND v A and N [2023] NZHC 1864

TE WHATU ORA HEALTH NEW ZEALAND TE TOKA TUMAI AUCKLAND v A and N [2023] NZHC 1864[18 July 2023]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-2023-404-1420[2023] NZHC 1864IN THE MATTER of an application pursuant to s 13 of the Careof Children Act 2004 to place a child underthe guardianship of the CourtANDIN THE MATTER of MBETWEEN TE WHATU ORA HEALTH NEWZEALAND TE TOKA TUMAIAUCKLANDApplicantAND A and NRespondentsHearing: 18 July 2023Appearances: S Tune for the ApplicantRespondents in personJudgment: 18 July 2023JUDGMENT OF GAULT JThis judgment was delivered by me on 18 July 2023 at 1:00 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy Registrar[1] An 18 month old boy (M) needs urgent treatment for a rare malignant tumour(hepatoblastoma). M's parents consent to treatment under the care of StarshipChildren's Hospital but they are Jehovah's Witnesses and, given their religious beliefs,they will not consent to the administration of blood or blood product transfusions to M.[2] The applicant, Te Whatu Ora Health New Zealand Te Toka Tumai Auckland(TTT), seeks an urgent guardianship order under the Care of Children Act 2004 (Act):(a) to place M under the guardianship of the Court from 18 July 2023 untilcompletion of his treatment and at the latest until 13 January 2024;1(b) appointing Dr Mark Andrew Winstanley and Dr Peter James Bradbeeras agents of the Court for the particular purpose of consenting to theadministration of blood and/or blood products to M:2(i) in connection with treatment (including chemotherapy andsurgery) of M's hepatoblastoma where that treatment isconsented to by M's parents; and(ii) where the administration of blood and/or blood products is inaccordance with good clinical practice and in M's best interestsas assessed by Dr Winstanley and Dr Bradbeer;(c) appointing M's parents as general agents of the Court for all purposesother than consenting to the administration of blood and/or bloodproducts to M.3[3] The application is supported by a detailed affidavit from Dr Winstanley,consultant paediatric oncologist and M's primary treating physician, and a supportingaffidavit from Dr Bradbeer, consultant paediatric haematologist. One of these doctorsin the Starship Blood and Cancer Centre at Starship Children's Hospital will beresponsible at all times for M's treatment.1 Care of Children Act 2004, s 31(1)(a).2 Section 31(1)(b).3 Section 31(1)(b).[4] Given the urgency and the parent's affidavits sworn this morning, I conveneda hearing at short notice.Background and medical evidence[5] M was diagnosed with hepatoblastoma on 6 July 2023. Hepatoblastoma is arare malignant tumour of the liver which is highly curable when treated according tothe Children's Oncology Group protocol followed by the Starship Blood and CancerCentre. However, any delay in treatment will result in the tumour increasing in sizeand spreading to other organs, which reduces the treatment's success rate.[6] M will initially require surgery for the insertion of a portacath (central venouscatheter to facilitate administration of chemotherapy). Treatment involveschemotherapy to shrink the cancer to make it small enough to safely undergo liversurgery. Following chemotherapy, it is anticipated that M will be a suitable candidatefor liver surgery. M's case has been reviewed at a multi-disciplinary team meetingand agreement was reached that the proposed treatment (single agent chemotherapyand liver surgery) was in his best interests. His treatment will be continually reviewed.[7] The surgery to insert the portacath carries a risk of bleeding such that a bloodtransfusion may be necessary. Review of previous cases over the last decade hasshown that more than 90 per cent of patients have required blood transfusion supportduring therapy in Starship. The liver surgery also carries a risk of bleeding.Dr Winstanley says that where appropriate, the clinicians will take measures tominimise the requirement for transfusion but it remains likely that transfusion will berequired. In his opinion, it is likely that M may need a transfusion of blood productsas an ongoing and ever present risk, while undergoing chemotherapy treatment andthat M will face life-threatening complications without such a transfusion.In Dr Winstanley's view, it would not be responsible medical practice to commencecurative chemotherapy without the ability lawfully to administer blood transfusionsto M.[8] Ms Tune, for TTT, also assured the Court that the doctors will seek to minimisethe need for blood transfusion.[9] Each of M's parents has filed an affidavit (in the same terms) confirming thatthey received copies of the Court papers yesterday. They love their son M very muchand want the best possible medical treatment for him. They accept that he hashepatoblastoma and that he requires surgical resection of the tumour andchemotherapy (single-agent or multi-agent if the cancer has spread beyond his liver)to stay alive. However, as one of Jehovah's Witnesses, each sincerely believes thatGod's law in the bible prevents them from consenting to a blood transfusion either forthemselves or for M. They believe that blood is sacred and agreeing to accept a bloodtransfusion would be to break God's law as recorded in the bible. They are alsoconcerned that having a blood transfusion carries significant medical risks.[10] They assure the Court that apart from not consenting to M being giving a bloodtransfusion, they have sought to co-operate fully with M's doctors in every waypossible. They deeply appreciate the medical care and assistance being given to M bythe medical team and know that they are genuinely concerned about M and hiswellbeing. They fully agree that it is in M's best interests to receive medical treatment,including the proposed surgical resection of the tumour and chemotherapy, andconsent to that treatment except for the transfusion of blood or blood products.[11] They ask the Court not to grant the order sought, but if the Court makes anorder against their wishes they understand that they must obey the law and so willbring M to the hospital for all appropriate medical treatments. They ask that, if anorder is made, it be made in a way that assures every effort is exerted in the use ofappropriate blood conservation strategies before a blood transfusion is administered.They further ask that, if an order is made, it ensures that every effort is made tominimise the administration of blood or blood products, that authority to approve theadministration of blood or blood products be limited to Dr Winstanley andDr Bradbeer, and is limited in duration to only the period that is absolutely necessary.[12] For privacy reasons, they also request that an indefinite non-publication orderbe issued in respect of this matter.Procedural matters[13] I first address the procedural matters dealt with at the commencement of thehearing.Non-publication[14] TTT sought an order suppressing the details of this application under s 139 ofthe Act. That section provides that ss 11B to 11D of the Family Court Act 1980 applyto the publication of a report of any proceedings under the Act in any Court. Thosesections prohibit, without leave of the Court, publication of a report that includesidentifying information where a child is the subject of the proceeding. Identifyinginformation means information relating to proceedings that includes any name orparticulars likely to lead to the identification of any applicant or other party to theproceeding, the person who is the subject of the proceeding and any person who isrelated to, or associated with, such a person.[15] Identifying particulars of M and his parents must not be published.[16] However, I see no need to suppress the identification of the applicant TTT andgrant leave accordingly.Leave to commence by originating application[17] TTT sought permission to commence this proceeding by originatingapplication.4 As indicated, it is in the interests of justice to permit this proceeding tobe commenced by originating application. I granted leave accordingly.Service and abridging (shortening) time[18] Given the urgency, Ms Tune also sought directions that only M's parents needbe served and abridging time for any notice of opposition. I agreed that no otherperson need be served.4 High Court Rules 2016, r 19.5(3).[19] Abridging time is sought since the application was only filed and servedyesterday, albeit the parents were told late last week that it would be filed, and the timeprescribed for any notice of opposition under the High Court Rules has not yet elapsed.As the parents have already sworn affidavits clearly setting out their position and atthe hearing they confirmed they did not seek more time, it is in the interests of justiceto shorten the time for any notice of opposition to the date of service (last night).I made an order accordingly. Of course, I have received the parents' affidavits thismorning and accept those affidavits as setting out their position in opposition.[20] TTT also seeks leave, pursuant to s 31(2)(g) of the Act, to apply for an orderplacing M under the guardianship of the Court. Section 31(2) specifies persons whoare eligible to apply for an order placing a child under the guardianship of the Courtand requires any other person to seek leave to apply. The leave requirement is anadditional safeguard. Here, the applicant is TTT, not the clinicians proposed to beappointed as agents of the Court if a guardianship order is made. TTT is charged withM's medical care and treatment and has a bone fide interest in his welfare. That is asufficient basis to be granted leave to apply for an order placing M under theguardianship of the Court. Order accordingly.[21] Given the information before the Court and the parent's statement, I do notconsider it necessary to appoint counsel for the child under s 7 of the Act.Guardianship orders – applicable principles[22] Section 31 of the Act provides as follows: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.[23] The High Court and the Family Court have concurrent jurisdiction under s 31.5[24] Section 33(1) provides: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 Courtthinks fit to be the agent of the Court either generallyor for any particular purpose.[25] Section 36(3) relevantly provides:(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; [26] Importantly, s 4(1) of the Act provides:(1) The welfare and best interests of a child in his or her particularcircumstances must be the first and paramount consideration—5 Care of Children Act 2004, s 30.(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.(2) Any person considering the welfare and best interests of a child in hisor her particular circumstances –(a) must take into account –(i) the principle that decisions affecting the child shouldbe made and implemented within a time frame that isappropriate to the child's sense of time; and(ii) the principles in section 5; [27] As the Court of Appeal confirmed in Re J (An infant): B and B v Director-General of Social Welfare,6 a case also involving parents who were Jehovah'sWitnesses and would not consent to treatment involving the giving of blood, this Courthas jurisdiction, where the interests of the child so require, to place the child under theguardianship of the Court and authorise a suitable person (such as a doctor) on itsbehalf to consent as guardian to medical treatment including by blood transfusion.[28] The Court's jurisdiction is not ousted by s 37 of the Act which governs urgentblood transfusions.7 Section 37 can assist in establishing what must be shown whenseeking intervention by the Court – the reasonable opinion of the medical practitionerthat a blood transfusion is necessary to save the life of the patient, to prevent injury tophysical or mental health or to save the patient from prolonged and avoidable pain andsuffering.86 Re J (An infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134 (CA) at 142(under s 9 of the Guardianship Act 1968). In this Court, see for example Auckland District HealthBoard v S [2020] NZHC 300 and Auckland District Health Board v E [2013] NZHC 2154, [2014]NZFLR 451. The Court's jurisdiction is unaffected by the recent restructuring of the hospitalsystem such that the applicant is Te Toka Tumai instead of the District Health Board: Te WhatuOra, Health New Zealand, Te Toka Tumai v C and S [2022] NZHC 3283, [2022] NZFLR 398 at[35].7 Re J (An infant): B and B v Direction-General of Social Welfare [1996] 2 NZLR 134 (CA) at 142(relating to the predecessor of s 37, s 126B of the Health Act 1956).8 At 142.[29] Where it is unnecessary for the child to have a blood transfusion at the time ofthe application, but there is a risk this need will arise in the course of treatment, theCourt engages in a two-step analysis:9At the first stage it is necessary to assess the likelihood that the condition ofthe patient will become such that a blood transfusion is to be considered. Thesecond stage is when that condition has developed and the appropriate medicaltreatment is to be determined. on such applications there must be a real or substantial risk that thepatient's condition will in the course of medical care be such as, on acceptedmedical practice, would call for blood transfusion and that in the event thatcondition develops a blood transfusion will be necessary.[30] The Court of Appeal addressed the different and separate rights of the child tolife and the parents to manifest their religion and practice contained in theNew Zealand Bill of Rights Act 1990:10Every 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 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 othersWe 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.In the present context that is consistent also, in the circumstances of this case,with giving effect to s 23 of the Guardianship Act by recognising theparamount interests of the child. It also avoids any approach casting an onusto be discharged in respect of the invasion of the parents' right before the rightof the child can be secured. That is not appropriate for reconciling thesecompeting rights.Decision[31] In this case, while respecting the parent's concerns and unwillingness toconsent to blood transfusion, I am nevertheless satisfied on the evidence of9 Re J (An infant): B and B v Direction-General of Social Welfare [1996] 2 NZLR 134 (CA) at 143.10 At 146.Dr Winstanley and Dr Bradbeer that there is a real and substantial risk that M willrequire a blood transfusion in the course of receiving chemotherapy and liver surgery.If so, blood transfusion will be necessary to avoid life-threatening complications.As indicated, where appropriate the clinicians will take measures to minimise therequirement for transfusion. The order sought is appropriately limited as to the scopeof the two named doctors' agency to consent and limited as to time.[32] In those circumstances, I am satisfied that it is in M's best interests that thelimited guardianship order sought should be made so that the two appointed doctorscan consent to the administration of blood and/or blood products to M.[33] I note that, as well as appointing M's parents as general agents of the Court forall purposes other than consenting to the administration of blood and/or blood productsto M, the order sought directs the clinicians to keep M's parents informed at allreasonable times of the nature and progress of M's condition and treatment.Result[34] I make a guardianship order in the following terms:(a) placing M under the guardianship of the Court from 18 July 2023 untilcompletion of his treatment and at the latest until 13 January 2024;(b) appointing Dr Mark Andrew Winstanley and Dr Peter James Bradbeerseverally as agents of the Court for the particular purpose of consentingto the administration of blood and/or blood products to M:(i) in connection with treatment (including chemotherapy andsurgery) of M's hepatoblastoma where that treatment isconsented to by M's parents; and(ii) where the administration of blood and/or blood products is inaccordance with good clinical practice and in M's best interestsas assessed by Dr Winstanley and Dr Bradbeer;(c) appointing M's parents as general agents of the Court for all purposesother than consenting to the administration of blood and/or bloodproducts to M;(d) directing Dr Winstanley and Dr Bradbeer to keep M's parents informedat all reasonable times of the nature and progress of M's condition andtreatment;(e) reserving leave to the parties to apply to the Court for a review of theseorders should this be warranted by any change of circumstances; and(f) noting that identifying particulars of M and his parents must not bepublished by virtue of s 139 of the Care of Children Act 2004.[35] I make no order as to costs.________________________________Gault JParties / Solicitors:Ms S Tune, Te Whatu Ora Health New Zealand Te Toka Tumai, AucklandThe Respondents