Child & Adolescent Health Services v Kiszko [2016] FCWA 34 is a decision today of the Family Court of Western Australia in which the hospital sought orders for a 6 year old child to receive radiotherapy, in addition to the chemotherapy previously ordered on an interim basis.

The parents had opposed chemotherapy and later agreed to its continuance, but they did not agree to radiotherapy. An independent medical expert was somewhat equivocal regarding the use of radiotherapy for such a young child, noting a study which raised the risk of severe neurocognitive impairment.

An order for radiotherapy was not made and the earlier orders for chemotherapy were discharged.

The following passages are of interest:

[64] …I do not perceive that it is my function to determine which of the expert opinions should be accepted, to the extent that there are differences between them. As I perceive this dispute, given the common ground between the opinions of well-respected experts, the question is properly conceptualised not as a medical issue, but rather as a social, moral or ethical issue, in which the answer is “inevitably affected by personal perceptions of current social conditions, standards and demands”: Deane J in Marion’s Case at 304.

[65] It seems to me that there are two social, moral or ethical questions involved. The first is whether greater emphasis should be placed on life itself or on the quality of the life. The second question is whether the first question should be answered by me as the representative of the state or by the parents, who in every other respect are permitted to make decisions on behalf of their child who is too young to make decisions for himself.

[67] I have already observed that there appears to be no other case where a medical intervention has been imposed on parents in circumstances where there is a reputable, independent expert who considered that the views of the parents were supportable based on an assessment of the relative benefits and burdens of the proposed treatment….

 

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