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Notes
It is well-established at common law that a capable adult has the absolute right to refuse medical treatment, even if doing so would cause serious detriment to their health see Brightwater Care Group (Inc) v Rossiter [2009] WASC 229; see also H Ltd v J [2010] SASC 176; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88.
In presenting his judgment His Honour did not address the histopathology of the tumour or its anatomical location in the brain. This is likely due to the urgency of the matter and that the hearing date had been advanced at the applicant’s request (see CAHS v Kiszko [FCWA] 19, ¶1, ¶9, ¶21).
The last MRI was conducted after the EC meetings had concluded and indicated that the tumour had grown at a slower rate supporting the findings of the EC and the administration of curative medical treatment instead of palliative care. However, treatment was required urgently for the best long-term outcome (see ¶43–44).
It is necessary to clarify that there were two EC meetings held, and that between these meetings, Oshin’s parent’s stance toward his future medical treatment fundamentally altered. Initially Oshin’s mother was amenable to curative medical treatment and wanted to delay making a decision to try alternative therapies. However, she later indicated that she “actively rejected conventional therapy” (see ¶36–39).
Here Thackray CJ was citing the authoritative statement expounded by Pullin J in Minister for Health v AS (2004) 29 WAR 51, ¶23.
This case was heard again before Thackray CJ on 16 May 2016 where he His Honour declined to order radiotherapy for Oshin. His Honour’s previous decision concerning the administration of chemotherapy was unchallenged (see CAHS v Kiszko [2016] FCWA 34). This development will be subject to further discussion.
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Okninski, M. Determining a Child’s Best Interests when Parents Refuse Medical Treatment—CAHS v Kiszko & Anor [2016] FCWA 19. Bioethical Inquiry 13, 365–368 (2016). https://doi.org/10.1007/s11673-016-9733-1
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DOI: https://doi.org/10.1007/s11673-016-9733-1