Court Exercises Parents Patriae Jurisdiction and Orders Surgery on Baby

27 JUL 2018

 

12-month-old baby K, born on 22 July 2017, is currently in the Lady Cilento Children’s Hospital in Brisbane. For all but two months of his life, baby K has been in hospital. He was born with cortical dysplasia in the left hemisphere of his brain and because of this condition, he suffers from refractory epilepsy, meaning epilepsy which is not treatable with medication. He suffers from frequent and severe seizures.

Many treatments have been tried with K, including conventional Western medical treatments as well as a number of traditional remedies from his parents’ home country. However it appears that all of them have been ineffective.

K continues to suffer from frequent and serious convulsions as a result of the untreatable epileptic seizures, requiring rescue medication on many occasions, and he had numerous admissions into the paediatric intensive care unit.

Dr M and Dr H are of the firm opinion that the only way to preserve K’s brain and to ensure that he has the best possible chance of a future life, is to perform an operation called functional hemispherectomy. This serious operation involves disconnecting the left side of his brain from the right side of his brain, the intention being to preserve intact the good side of his brain and to prevent or at least substantially reduce these constant seizures from which K suffers.

K’s parents have refused to consent to the operation, because they retain hope that traditional remedies might provide what might be described as a miracle cure. This is in accordance with their sincerely held religious and cultural beliefs.

On this basis, the hospital asks for the Court to provide its consent, in the absence of the parents’ consent, for the hemispherotomy to be performed and in accordance with parens patriae jurisdiction. In the exercise of this jurisdiction, the Court may override the wishes of the child’s parents.

Her Honour Atkinson noted that it is not the parents’ preference, and he is their child, and it is they who will be bringing him up. However Atkinson J found that the operation is in K’s best interests, noting that the parents’ love for their child and their involvement in his physical, emotional and spiritual development will stay with him through the days and weeks, months and years to come.

Accordingly, the court upheld the hospital’s application and declared that the Children’s Health Queensland Hospital and Health Service and medical practitioners and nurses acting on its behalf in providing medical and nursing services to K are authorised to perform a hemispherotomy, and any associated intervention, care and treatment.

For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.

This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication

 

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