K was a child born with a condition which severely affected the left side of his brain. This resulted in developmental delays and severe seizures.

After the initial treatment trialled by his treating hospital did not improve his condition, the hospital recommended surgical removal of a section of the left side of the child's brain. His parents refused to give consent, preferring to fly the child to their home country for traditional treatment. The hospital applied to the Supreme Court of Queensland seeking an overriding consent of the court to perform the surgery.

Background Facts

K (whose name was concealed for privacy reasons) is an 11 month old baby boy. He was born with cortical dysplasia in the left hemisphere of his brain. As a result of this, he suffers from refractory epilepsy, which is a form of epilepsy not treatable with medication. K's symptoms include frequent and severe seizures. Many treatments were attempted. These included a variety of anticonvulsive drugs and the use of cannabis oil. None of these seemed to improve his condition.

Further, K's parents had attempted a number of traditional treatments from their home country. These included treatment with holy water, prayers by a monk and a traditional smoke ceremony. The court noted that no harm had been done to the child through any of these treatments. However, it found that they were ineffective. The seizures eventually began to affect the right side of K's brain.

Both of K's Paediatric Neurologists believe that the only way to preserve K's brain and ensure that he has the best possible chance of a future life, was to perform a functional hemispherectomy. This is a serious procedure which involves surgically dividing K's cerebral hemispheres and removing a section of the left cerebral hemisphere. The experts opined that this operation must be performed as a matter of urgency to prevent further deterioration of K's brain. His parents on the other hand, opted to take K back to their home country to undergo more traditional remedies. They consequently, refused to consent to the operation.

The Health Service in charge of K's care, brought an application to the Supreme Court of Queensland seeking the Court's consent, in the absence of the consent of K's parents, for the surgical procedure to be performed on K.

Considerations and Findings

Justice Atkinson acknowledged that K's parents clearly loved their child and that the hope they retained for a cure through traditional means was one sincerely held. Her Honour however, considered that for these traditional measures to be attempted, K would need to be flown to his parents' home country. She stated that this flight, no matter how efficiently it is organised, would be 'arduous' for the baby. There was also no evidence that K could receive in his parents' country, the same level of expert medical care available to him in his current hospital.

Her Honour noted that the Supreme Court has a 'parens patriae' jurisdiction which it can exercise to protect the person and property of people, especially children, in the case they are unable to look after their own interests. She referred to judicial authority that supports the law that the Court's powers when exercising this jurisdiction are much broader than that of a natural parent. In exercising this jurisdiction, the Court may override the wishes of a child's parents in pursuit of the best interest of the child.

Her Honour considered a number of options. The first option was to do nothing. She immediately determined that this was not a viable option and was not in the best interest of the child. Other options included allowing the child to go with his parents to their home country. Her Honour accepted the view of medical experts that this was not an ethically reasonable approach and not in the best interest of the child since his condition would get worse. Another option was to have a lesser operation than the one proposed. Her Honour determined that while this option seemed attractive, expert medical opinion indicates that it would be futile.

Ultimately, Justice Atkinson held that the best option was for K to undergo the proposed functional hemispherectomy. She stated this was supported by the opinion of experts and also by medical literature. She noted that this surgery would give K a better quality of life and the chance to reach his full potential, albeit with some level of developmental delay. Her Honour agreed that K was in an urgent need for this surgery and that it was in his best interest.

Orders

Justice Atkinson ordered that the hospital was authorised to perform the functional hemispherectomy on K, including any associated intervention, care or treatment which it may consider desirable or necessary for the child.