Director Clinical Services, Child and Adolescent Health Services and Kiszko & Anor [2016] FCWA 19

Date: May 30, 2016


Child ordered to undergo cancer treatment

Director Clinical Services, Child and Adolescent Health Services and Kiszko & Anor [2016] FCWA 19


Key Points


The Family Court of Western Australia recently ordered that a six year old boy with a brain tumour undergo chemotherapy treatment after his parents refused to provide consent for him to do so.

The treating doctor at the hospital initiated the application as he was concerned that the parents’ failure to give consent for chemotherapy was not in the child’s best interests.  The medical evidence suggested that if combined chemotherapy and radiotherapy was given there was a 50 – 60% change the child would survive at 5 years.

The parents argued that they did not believe the chemotherapy treatment was in the child’s best interests and said they had moved away from just wanting to delay the decision, to a position of actively rejecting chemotherapy.  The child’s mother said it was her intention to trial alternative therapies focussing on nutrition.

Justice Thackray said the evidence made clear “beyond all doubt” that the child would die within a few months if measures were not taken to prevent his death.  Justice Thackray said he had taken into account the parent’s evidence about the adverse impact on the child over the next few months, but the prospect of a long-term cure was “the matter that most heavily must weight in the decision”.

In March the Family Court ordered that the child receive chemotherapy, and he was subsequently given two cycles of the treatment.  Since then, the child’s cancer has shown signs of receding, however the response is considered partial and not sufficient for chemotherapy to be effective on its own.  The child’s parents are still opposed to radiation therapy due to the long-term side effects, including reduced cognitive ability.  The Family Court is now considering whether the child should also be given radiotherapy, as desired by his medical team.

The Law

The Family Court of Western Australia echoed the comments made in Minister for Health v AS [2004] 29 WAR 517 where it was held that the ultimate question is not whether to respect the parents’ wishes. The role of the Court is to exercise an independent and objective judgment and balance the advantages and disadvantages of the treatment being considered.


This is case illustrates the difficulties encountered in circumstances where the opinions of the parents are in direct conflict with the specialists treating a child who has yet to achieve a sufficient understanding and intelligence to understand fully what is proposed.

This case acts as a reminder to practitioners that when it comes to the treatment of those who are unable to provide consent, while the wishes of the guardian may be relevant, they are not determinative.


The Health Law team


 Disclaimer: This article is intended for informational purposes only and should not be construed as legal advice. For any legal advice please contact us.


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