Justice Garling of the NSW Supreme Court heard an urgent application by the parents of a 9 month old boy, seeking orders that doctors continue certain treatment of their son.

TS & DS v Sydney Children’s Hospital Network (“Mohammed’s case”) [2012] NSWSC 1609 saw the parents ask the court for orders that the doctors treat the seriously ill 9 month old by means of mechanical ventilation, rather than by treating him only with oxygen delivered through continuous positive airway pressure.

The clinical background included Down syndrome, a cardiac abnormality and another quite significant metabolic disorder. His prognosis was described as grim.

It was not suggested by the hospital that there was any financial reason, or any reason relating to a shortage of resources, beds or facilities which would preclude Mohammed being provided with mechanical ventilation if that was in his best interests.

The court touched on the issue of quality of life, but did not find that consideration helpful, saying:

….when applying that term to a 9 month old baby who does not yet talk or communicate verbally, and does not physically respond to anything other than painful stimuli, and cannot see or hear, identifying the integers which comprise an assessment of the baby’s “quality of life” is impossible. Any such assessment necessarily reflects the individual values of the assessor.

 

In this case, I think that it is entirely unhelpful to engage in an ill-defined process which is quintessentially a subjective one for each assessor to determine what Mohammed’s quality of life is. I have not made any such assessment and I have disregarded as irrelevant, any expression of opinion by any of the doctors as to what Mohammed’s quality of life is or will be.

Contrary to the views of the parents, the doctors opined that it was in Mohammed’s best interests not to be subjected to the invasive procedure of mechanical ventilation with all which that entailed. Rather they said, having regard to the overall clinical picture, and his prognosis, Mohammed’s best interests were to be provided with pain relief and palliative care measures. They said that since his clinical condition was terminal, and that it was not possible to cure it, or alleviate it, other than, perhaps, temporarily by the use of the ventilator, the risks associated with mechanical ventilation, and the pain and distress caused by or associated with the procedure significantly outweighed any benefit which Mohammed would obtain from the ventilator.

Two questions were identified for resolution. First, was it in the best interests of Mohammed for him to have treatment by way of mechanical ventilation. Secondly, if it was, can and should the Court order that, contrary to the views of his treating doctors, mechanical ventilation must be provided.

The court held that it was not in the best interests of Mohammed for him to be mechanically ventilated. The procedure would cause Mohammed pain and discomfort. At best he would receive a temporary benefit. But it will not cure his condition, nor will it play any role in alleviating his outcome.

In relation to the second issue, the court helpfully commented as follows, emphasising the importance of the doctors’ professional opinions:

……In the exercise of the Court’s parens patriae jurisdiction, it will be a rare occasion when a court by a mandatory order interferes in a doctor/patient relationship in a way which compels the doctors to do something which they regard as contrary to their patient’s best interests.

 

If the court is satisfied that the opinions of the doctors have been reached after careful consideration having regard to the correct and relevant matters and are opinions reached in the proper exercise of their professional judgment as to what is in the best interests of their patient, then I very much doubt that a court would ever make an order of the kind sought here. That is because it is not the role of the court to interfere in such a professional relationship and to compel action by an unwilling participant which would have the consequence of placing that individual in the position, in good conscience, of choosing between compliance with a court order and compliance with their professional obligations.

 

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