The Family Court of Western Australia recently ordered that Oshin Kisko, a six year old boy suffering from brain cancer, undergo potentially life-saving chemotherapy against the wishes of his parents.
Oshin's parents had refused to allow their son to undergo the treatment because they did not want their son to suffer from the side effects of chemotherapy and radiation.
Oshin's doctors then took legal action, and applied to the Court who ordered that Oshin must undergo the treatment, despite his parents' refusal to consent to it. In making its decision, the Court said parental power was to be exercised in the best interests of their child, but was not unlimited.
A court's ability to override a parent's wishes in relation to the medical treatment of their child arises from a specific legislative provision, which is referred to as the court's "welfare jurisdiction". This provides the Family Courts with broad powers to make orders relating to the welfare of children. Basically, the courts can make any orders relating to a child's welfare where the order is in the child's best interests, even in circumstances where this may be contrary the wishes of the child's parents.
The welfare jurisdiction has also been used in some cases where a medical treatment proposed for a child has such serious risks or consequences that even with parental consent, permission and oversight from the court is considered necessary by medical professionals.
As evidenced in Oshin's case, a very common exercise of the court's welfare power, is in ordering special medical procedures where the child's parents will not consent to treatment.
Examples of some other circumstances in which the court has used this power in the past include, ordering:
- Surgical treatment for a serious cardiac condition where the child's parents would not consent;
- Blood transfusions where the child's parents would not consent due to religious beliefs;
- Hormone or surgical treatment for adolescents suffering Gender Dysphoria;
- Surgical intervention for treatment of inter-sex infants;
- Medical treatment involving a bone marrow transplant between two minors who were cousins, which would otherwise be a criminal offence; and
- Administration of experimental treatment on a 5 week old baby suffering from a terminal illness with no known cure.
Oshin's case is a salient reminder that although parents may consider their decisions to be in the best interests of their child, there are limits to parental decision making and responsibility - especially where a child's welfare is at stake.
About the authors:
Bonnie Halsall, Lawyer
Rachell Davey, Special Counsel
All information in this article is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.