Parental Refusal of Medical Treatment for a Minor

Keywords: Refusal of medical treatment Parental authority Best interests of the child

Introduction

The law in circumstances where parents make decisions regarding the refusal of medical treatment on behalf of their child
is a contentious part of medical law. This due to the ethical contemplations that arise when considering what the right
choice is in difficult situations where the interests of a minor is conveyed by their parents. The responsibility of choosing
to consent to or refuse medical treatment is placed on the parents of the minor, and in a situation where this occurs, the
main point of contention for the courts to consider is whether the intended actions of the parents acting for the minor are
in fact in their best interests. This principle was discussed in the case of Director Clinical Services, Child & Adolescent
Health Services v Kiszko & Anor [2016] FCWA 19 (the March hearing), where the parental refusal of chemotherapy and
radiotherapy was overruled due to the medical evidence of a potential long-term cure by Thackray CJ. In the more recent
case of Director Clinical Services, Child & Adolescent Health Services v Kizsko & Anor [2016] FCWA 75, OBrien J
overturned the decision in the previous applications, which allowed the parents of Oshin Kiszko to consent to palliative
treatment on his behalf.

Background

Oshin Kiszko was diagnosed on December 1, 2015 with medulloblastoma, a form of brain tumour, and underwent surgery
to remove the tumour on December 3, 2015 with the consent of his parents. After the surgery, Oshins parents wished to
pursue alternative treatment such as palliative care instead of undertaking the established protocol for treatment for
medulloblastoma, whereas the treating doctors at Princess Margaret Hospital (PMH) wanted to proceed with the
radiotherapy and chemotherapy as part of the treatment. In the first application by PMH, Thackray CJ made orders to
authorise the commencement of the treatment. Following the decision of the court, Oshin underwent the recommended
chemotherapy and radiotherapy. The results of the chemotherapy indicated that it alone would not be able to save Oshins
life. For a realistic chance of survival, the medical staff would need to administer a combination of a high-level dosage of
radiotherapy with the chemotherapy. The treating doctors stated that without this recommended course of treatment, there
would be a low chance of survival.
At the conclusion of the hearing on May 16, 20161 the views of Oshins parents had changed to the extent that
they agreed to allow the chemotherapy treatment on its own; they were still opposed to the radiotherapy because of the
potential long-term side effects that would affect the quality of Oshins life in the event he survived. The decision of the
May hearing enabled the treatment using chemotherapy, as Thackray CJ refused to impose radiotherapy on the basis that
a minority of parents would possess the same views as Oshins parents. After further rounds of chemotherapy following

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Director Clinical Services, Child & Adolescent Health Services v Kiszko & Anor [2016] FCWA 34.
the May hearing, Oshins parents advised PMH that they did not consent to either option presented to them for further
treatment of Oshin, which was a curative treatment involving a combination of chemotherapy and radiotherapy.

The Decision of OBrien J

In arriving at a conclusion for cases with such circumstances, the court must look at the best interests of the child in their
individual case in an objective manner. Additionally, there must also be a focus on the prolonging of life, which in itself is
not an absolute factor; there must also be consideration of the quality of life.
PMH raised the argument that in this case, there was a risk that Oshins parents would make the wrong decision
as to his best interests as it was a highly emotional situation. They continued to put forward the argument that the decision
to switch to palliative care was beyond the scope of parental authority (Secretary of the Department of Health and
Community Services v JWB and SMB (1992) 175 CLR 2182 at [250]) where expert medical opinion on the matter is
available (Director Clinical Services, Child & Adolescent Health Services v Kizsko & Anor [2016] FCWA 75 (Kiszko)
at [78]). On the contrary, counsel for Oshins parents contended that the power of the court should only be used to intervene
in circumstances where it is needed for the protection of the child, where the parents of the child are incapable of properly
exercising their parental responsibility ([83]).
OBrien J made note of distinguishing what this case was about and what it was not about ([88]). It was determined
that the issue of the case was solely on deciding what was in Oshins best interests in the specific circumstances of the
case. Ultimately, it was concluded that it was in Oshins best interests to move to palliative care. OBrien J took into
account the medical evidence regarding the likelihood of Oshins survival and the expert medical opinions provided in
considering the prolongation of life, as well as the balance of the therapeutic ratio which only saw a small chance at
saving his life at the risk of significant harm ([94], [97]).
There was also a focus on considering the best interests of Oshin in the present situation he faced at the time of
the hearing, regardless of how the circumstance arose ([95]). The unique relationship between Oshin and his parents was
given significant importance in coming to the final decision OBrien J gave weight to the fact that they had been
responsible for all important decisions made for Oshin since birth. Furthermore, OBrien J accepted that the views and
wishes of Oshins parents must be given both considerable weight and respect, as the relationship between them and their
child was deemed to be critical to Oshins quality of life in the approaching months ([99]). The application of the PMH
was denied and orders to move Oshin to palliative care were commenced.

Implications of the Decision

The judgment of OBrien J differs from the judgments given by Thackray CJ in the previous two instances of Kiszko. It is
important to understand that the differences in the facts of the cases are what led to the final order allowing Oshin to enter
palliative care. The decisions of each hearing reflect the emphasis placed on guarding the principle of the best interests of

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Commonly known as Marions Case.
the child when reaching a conclusion for difficult cases such as the Kiszko hearings. In situations where ethics and the law
meet, the courts are able to exercise the discretionary power of parens patriae, which protects vulnerable minors from
abuse or neglect. This principle was reflected in the March hearing by Thackray CJ as the judgment was primarily focused
on the wellbeing of Oshin in light of the medical evidence presented in court. The judgment of the May hearing was decided
by using the same principle under a different factual basis, resulting in the conclusion aligning with the wishes of Oshins
parents.
In the OBrien J judgment, there was a strong focus on differentiating between the interests of the parents and the
best interests of the child. The decision reflected an important element taken from Marions Case which states that parental
rights only exist to protect the child. According to the judgment, it was evident that Oshins best interests was always the
focus of his parents in their decision to move him to a different method of treatment. In his reasoning for the outcome,
OBrien J emphasised the importance of looking at the specific circumstances of each individual case. At the time of the
hearing, the delay of treatment as a result of the previous two hearings severely impacted Oshins chances of the survival.
The recommended curative treatment for the prolongation of the life was given much consideration in the judgment,
however, with regard to upholding Oshins quality of life, the delay of treatment meant that the best course of action from
a medical perspective was to change the treatment to palliative care. The effect of this judgment supports the already
established legal principles in this area of law, and where the circumstances of a case is delicate, each factor presented must
be carefully analysed against both legal and ethical aspects to ensure that the best interests of the child is sole reason for
reaching a conclusion for a decision.

Conclusion

The decision in Director Clinical Services, Child & Adolescent Health Services v Kizsko & Anor [2016] FCWA 75 was a
clear example of what the courts must consider in cases where there is a disagreement over what choices and decisions are
in the best interests of the child. The Kiszko hearings reinforce the notion that the sole focus in judgment and exercise of
power should only be on the bests interests of the child. OBrien Js judgment included the application of the established
legal principles from Marions Case, the exercise of parens patriae and an emphasis placed on analysing the specific
details of an individual case as the basic foundation for cases with similar background. The judgments of Kiszko hearings
have potentially set a precedent in deciding the outcome of a case when the topic is in the controversial area of parental
authority and the best interests of the child.
References

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