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Family Law

Parents to appeal court-ordered chemotherapy for son with cancer

By April 12, 2016No Comments

By Gianna Huesch

Lifesaving treatment for a child—who decides?

A highly emotional case has been brought urgently before WA’s Family Court, with a doctor and hospital successfully seeking to have the court compel cancer treatment for a young boy in the absence of parental consent.

Six-year-old Oshin suffers from rare malignant brain tumour, for which he has undergone surgery. However, his parents are opposed to him receiving conventional cancer treatment involving chemotherapy and radiotherapy.

The boy’s medical team at the Princess Margaret Hospital had found Oshin’s tumour was on the cusp of a massive and irreversible progression and that it was now “time critical” to proceed with treatment.

The parents have stated their concern for the side effects and impact of the treatments, and say they wish to focus on the boy’s quality of life rather than the “dismal prognosis” they received from doctors. They fear his quality of life will be worse than usual “because of the fears that he has about seeing his own blood and his reaction to the occasions that he has been in the hospital.”

The mother and father had earlier expressed to the hospital’s Ethics Committee their desire to pursue alternative therapies (such as diet changes and herbal therapies), particularly given the mother’s background in holding a Diploma in Bodyworks and an Advanced Diploma in Diet and Nutrition. However, they have acknowledged their faith in these therapies is in regard to palliative care rather than a belief in their curative effect. The parents have been quoted in the media as saying:

“I don’t want my son’s brain fried with radiation. The effects are too harsh, too damaging … I find it even difficult to call it a treatment,” [the mother] told the Nine Network’s 60 Minutes.

They told the court they felt pressured and frightened by doctors into accepting the conventional treatments. But the hospital’s Ethics Committee said their position of actively rejecting conventional therapy was “not considered a rational approach [and] is not supported by available scientific evidence”. The Committee noted:

“While consenting adults are free to choose such paths for themselves, it is ethically indefensible to impose such irrational beliefs on the lives of others and there are legal avenues that serve to protect children under these circumstances.”

Medical evidence submitted to court showed the boy has a 30% chance of being alive after five years if he receives chemotherapy treatment, and a 50% chance if he receives both chemotherapy and radiotherapy. He was expected to die within months in the absence of any treatment.

The judge said this represented a “very high prospect of survival” for Oshin, notwithstanding the delays the parents had already caused through not immediately taking the advice of doctors. He found it was in child’s best interests to access the treatment and said:

“Parental power is not unlimited. It is to be exercised in the best interests of the child.”
Oshin had earlier been placed on Australia’s airport watchlist for fear he would be removed from Australia while legal proceedings were underway. The judge noted:

“The last time that the Supreme Court heard such a matter, an application was made by the hospital in relation to a child who…suffering from a similar illness. The parents were opposed to medical intervention. While the matter was before the court, the child was spirited out of the country, and taken overseas for alternative therapy, and very soon thereafter died.”

In this case, the court ordered that the prescribed treatment commence a day after Oshin’s planned sixth birthday party, a very big event to which Oshin “would be looking forward to very much”. Though Oshin’s treatment has now commenced, his parents are appealing the decision in the hope of stopping it.

Read more about the case here: http://www.theguardian.com/australia-news/2016/apr/11/parents-defend-attempt-to-stop-son-receiving-chemotherapy-for-brain-tumour?CMP=soc_567

You can also read the full text of the decision here: http://www.familycourt.wa.gov.au/_files/Publications/Judgment-CAHS-Kiszko-Strachan-24-Mar-2016.pdf

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