Parents finally "win" palliative care for child in Western Australia

Facts

At five years old, Oshin Kiszkom was diagnosed with medulloblastoma, a brain tumour. Following surgery, medical staff at the Princess Margaret Hospital in Perth (PMH) recommended immediately commencing radiotherapy and chemotherapy to treat the underlying cancer. They estimated a 50-60% chance of a cure. However, Oshin’s parents refused to consent, preferring alternative treatment to the risks and discomfort of chemotherapy and the long-term health impacts of craniospinal radiation.

An extremely controversial and public dispute followed. First, PMH commenced proceedings in the Family Court of Western Australia, seeking orders for treatment. Interim orders were given to commence chemotherapy (but not radiotherapy) in March 2016. Although Oshin responded to treatment, PMH staff were unable to obtain consent from the parents for further treatment.  After the Independent Children’s Lawyer resumed proceedings and obtained further evidence in May 2016, the parents consented to further chemotherapy. Again, despite responsiveness to therapy, the parents decided to commence Oshin on palliative care.

PMH made an application for the Court to exercise its power under s 162(1) of the Family Court Act 1997 (WA) (the Act) to order curative treatment for Oshin.

Issues

The Court had to decide whether ordering radiotherapy, chemotherapy or both was in the best interests of Oshin.

Discussion

Section 66C of the Act lists the matters a Court is obliged to consider to determine the “best interests” of the child. This is an open list, as it includes “any other fact or circumstance that the Court thinks is relevant” (s 66C(3)(m)). Justice O’Brien found medical evidence and the parent’s views the two main considerations behind his decision.

Medical evidence

With respect to prognosis, he noted that curative treatment was still possible, although the prospects of success had diminished due to delay. Regarding medical decision making, he noted that none of the doctors who had given evidence in proceedings had ceased the curative treatment of a child who was responding positively although there was some disagreement over whether the doctor would override a parent’s decision to do so.

The parents’ views

The views of Oshin’s parents were given “considerable weight” in their own right because of the unique relationship and knowledge the parents had of Oshin. Justice O’Brien also gave separate and significant weight to the way Oshin’s parents’ views had either directly or indirectly affected their capacity to love and care for Oshin in the cirumstances. For example, the parents were emotionally and physically exhausted as a direct result of proceedings and therefore less able to care for Oshin. Indirectly, the Court was told in one example that Oshin’s mother had refused to comfort him during a medical procedure in protest, instead filming his response to the court-ordered treatment.¹

This approach is significant given that Justice O’Brien had stated that some of the parents’ actions caused by their strong views could be “legitimately criticised”.²  He also declined to consider what they had admitted was their role in causing the delay, which had significantly reduced Oshin’s prospects of recovery.³

The position he takes on the parents’ actions is also interesting given that the parents had formally agreed to devote significant effort to improving and maintaining their relationship with hospital staff, no matter the outcome of the case.⁴

Result and impact

Justice O’Brien concluded that palliative care was in Oshin’s best interests.

In reaching his decision, Justice O’Brien stressed that the case was based entirely on the specific circumstances Oshin faced, and should not be seen as indicating particular views, such as the right to die peacefully or the extent of parental responsibility.⁵  Notwithstanding this, the weighing of factors does appear to rely heavily on the opinions and actions of the parents.

Furthermore Justice O’Brien’s comments on Marion’s case and decisions made “outside the scope of parental responsibility” suggest a similar trend. Counsel for PMH had argued that a decision to proceed with palliative care while medical consensus recommended curative treatment was outside the scope of parental responsibility. On the correctness of this submission, Justice O’Brien did not present a final view as he advised it would not affect his finding. He commented that even the decision to commence palliative care for Oshin was if outside the scope of parental responsibility he would still “necessarily” give “significant weight” to his parents’ views and role. This was because the “child’s welfare and best interests are inextricably entwined with his role as the member of a family in any event”.

Any significance this case has will resonate through other jurisdictions. Section 66C of the Act, which provided the framework by which the Court was to determine Oshin’s best interests, was enacted to replicate the structure and language of s 60CC of the pre-existing Commonwealth act, the Family Law Act 1975.

This article was written by Brit Mainhoff, Partner and Simon Hill, Graduate-at-Law.

¹Director Clinical Services, Child & Adolescent Health Services and Kiszko & Anor [2016] FCWA 75 at [67]-[69].
²Ibid, [98].
³Ibid, [96].
⁴Ibid, [44].
⁵Ibid, [90].