Court overrules parents’ wishes to order emergency surgery on baby

16 August 2018 | Georgie Haysom, BSc, LLB (Hons), LLM (Bioethics), GAICD, Head of Advocacy, Avant

A state Supreme Court has authorised doctors to operate on an 11-month-old baby, against their parent’s wishes.

The state hospital and health service applied to the court seeking a decision from the court to permit surgery clinicians believed would give the baby the best chance of a future life.

Medical advice at odds with parents’ wishes

The baby was born with cortical dysplasia in the left hemisphere of their brain and suffered from refractory epilepsy. The baby’s condition was expected to worsen over time with the seizures beginning to affect the right side of their brain, described as the 'good side' of their brain.

A number of treatments including anti-convulsive medications, cannabis oil and a ketogenic diet had unfortunately not relieved the baby’s symptoms. Traditional remedies administered by the baby’s parents, including holy water, prayers by a monk and ceremonies involving use of smoke, while not harmful, were ineffective. The baby had spent all but two months of their life in hospital, needing rescue medication on many occasions when their condition became critical and being admitted to the paediatric intensive care unit on numerous occasions.

A team of highly qualified paediatric neurologists caring for the baby, shared the opinion that the only way to preserve their brain was to undergo a functional hemispherectomy.

The baby’s parents refused consent for the hemispherectomy. Instead, in accordance with their religious and cultural beliefs, they wanted to take him/her to their home country for traditional remedies.

It was on this basis that the state hospital and health service applied to the Supreme Court seeking an order to proceed with surgery, in the absence of the baby’s parents’ consent.

Court considers five options  

After establishing the court had jurisdiction to consider the case (under its parens patriae  jurisdiction, which is exercised to protect the interests of those unable to protect themselves), the judge examined the five options before the court.

The first option of doing nothing was not considered viable as the baby’s condition would only worsen with time, and was therefore not in their best interests.

The court deemed the second option of palliation at home as not being ethically reasonable. The baby would undoubtedly continue to suffer persistent seizures, further impacting their development and ability to grow.

The third option, the one the parents favoured, was to take their baby to their home country for traditional remedies, including using holy water only available there. Doctors felt the baby would not survive the journey. The judge also noted that the baby would need medical insurance to fly, including a medical clearance which as the judge stated, “no ethically responsible treating doctor could give him a medical clearance to travel”.

Another alternative considered was to have a lesser operation than the one proposed. This was medical intervention the family found more attractive. However the medical view was this would expose the baby to the risks of surgery without the benefit of ridding him/her of seizures.

Ultimately, the court ordered the fifth option, authorising the baby’s medical team to perform a hemispherotomy and undertake any necessary care and intervention, including intraoperative or post-operative blood transfusion.

In handing down the order, the judge said “I have thought long and hard about this, because I understand this is not the parents’ preference … But I am satisfied that that operation is in [his/her] best interests…”.

The patient’s best interests

Generally, parents have the right to make decisions for their children, but the court may intervene where the welfare of the child requires that parental rights be superseded.

In this case, the court deemed the welfare of the baby required that the parental rights be superseded. Parens patriae power is not in place to force treatment, but to authorise it in accordance with standard medical practice.

In this case, the judge accepted that it would not be ethically responsible to allow for any other treatments than the one recommended by the specialist team of doctors.

Accordingly, the judge considered all medical evidence and opinions available. The best interests of the patient and the wishes, beliefs and convictions of the parents were taken into account, balanced against other considerations in making the order.

When consent for recommended treatment is not given

Doctors can only treat patients without first obtaining consent in exceptional circumstances. This is most commonly in emergencies where consent is not possible and the treatment is necessary to save a life or prevent serious harm.

Key points to remember

The Supreme Court in each state and territory and the Family Court can make orders that supersede the refusal of parents’ consent to medical treatment for their child. 

The court’s parens patriae power is not limited to orders necessary to save a person’s life or prevent serious harm, and therefore are not limited to urgent situations. The overriding principle is to act in the best interests of the patient.

More information  

Watch our webinar: ‘Professional morality: difficult ethical issues in medicine’ and obtain CPD points.

Download our fact sheets: ‘Children and consent’, ‘Consent in difficult situations’ and ‘Emergency Treatment Including Blood Transfusions For Children.’

If you need expert advice, visit our website or email our Medico-legal Advisory Service (MLAS) at: nca@avant.org.au or call 1800 128 268, 24/7 in emergencies.

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