Re: Angela [2010] FamCA 98 (16 February 2010)

Last Updated: 2 March 2010

FAMILY COURT OF AUSTRALIA

NAMES OF REPRESENTATIVES OMITTED

ORDERS

IT IS DECLARED:

(1) That the performance of a hysterectomy on ANGELA is in the child’s best interests.

IT IS ORDERED:

(2) That the Court authorises the performance of the procedure in paragraph (1) in the State of Queensland.

(3) To the extent it is necessary to do so, the mother is authorised to consent to the said medical procedure.

(4) That the solicitor for the applicant serve a copy of these orders and in due course the reasons, on the Director General, Department of Communities and the Director General, Queensland Health.

(5) That otherwise all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Re: Angela (Special medical procedure) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FILE NUMBER OMITTED

Applicant

And

REASONS FOR JUDGMENT

1. Angela is almost 12 years of age. She has Rett Syndrome. For some years, her doctors have endeavoured to treat her to improve her life. That has been largely unsuccessful. What is now proposed is a hysterectomy which I accept will improve her quality of life. Because of the irreversible nature of the surgery procedure, Queensland Health has required a court approval. The court has given that for the reasons set out below.

BACKGROUND

2. Angela is the third child of the mother and the father. The mother and father married in South America and came to Australia in 1991. All three of their children were born here.
3. All of the evidence points to the admirable parenting task that the mother and father have fulfilled since Angela’s birth. It has been a loving but onerous task because since her third birthday, Angela has been diagnosed with Retts Syndrome.
4. Retts Syndrome is a progressive neurological disorder that results in severe intellectual impairment, physical impairment and epilepsy. In this case, Angela has all of those difficulties.

THE EVIDENCE

5. The mother swore an affidavit which was filed and read into the proceedings.
6. The mother said that Angela cannot talk and has neither the coordination or the mental faculties to be able to use sign language. Communication is therefore limited. Angela acts as a three month old baby would.
7. The mother said that Angela has some movement in her arms and legs but cannot control that movement. She has to be fed and cared for. She does not have the coordination to be able to do anything for herself and has no bladder control.
8. Angela is unable to feed herself properly and cannot stand supported alone. She has a special walking frame into which she has to be strapped and she has a person to help her. According to the mother, Angela is otherwise transported by wheelchair.
9. From a hygiene point of view, Angela is unable to shower herself and requires a chair for that purpose. All of her toileting needs are undertaken by her parents. To assist, she wears nappies.
10. Since Angela was born, she has had epileptic seizures but that is now controlled by medication managed by paediatric neurologist Dr W.
11. The mother said and I have no reason to doubt, whilst the epilepsy is controlled by medication, seizures can occur when Angela has a heavy menstrual period. Those menstrual periods have been happening since she was 9 years of age. Unfortunately, they do not follow a regular pattern and the mother has to predict by the behaviour of Angela when they are likely to occur. Logic dictates therefore that epileptic seizures have to monitored carefully.
12. Medical treatment by way of contraceptive medication has been tried and generally not been successful. Menstrual problems for Angela bring with them pain and fatigue.
13. Angela has been attending Dr T since a referral from a general medical practitioner in 2006. Apart from the problems to which I have referred, Angela has already undergone surgery to have some rods placed in her spine. Difficult consequences because of an infection followed that surgery.
14. Ultimately, the mother was told by Dr T in March 2009 that the recommended treatment to solve many of these problems was a hysterectomy. Dr T obtained a second opinion from Dr C.
15. Upon the parents deciding that the hysterectomy was the appropriate course of action, Queensland Health, acting upon legal advice, said that the procedure could not be conducted without an order of the court.

THE EVIDENCE OF DR T

16. Dr T is an obstetrician and gynaecologist having qualified in 1994. Since 2003 she has been a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. She has been awarded membership of the Australian Gynaecological Endoscopy Society since 2003.
17. I am satisfied that Dr T is a person whose expertise is beyond question. She has been the treating practitioner for Angela but she has also stepped into the role of an expert for the purposes of these proceedings. I accept her evidence without any hesitation.
18. Dr T gave evidence by affidavit indicating that the proposed treatment was not a procedure for sterilisation purposes. Clearly, sterilisation is the consequence of the procedure but that is not its purpose.
19. Dr T described Angela’s bleeding as quite significant with passages of clots and flooding made more difficult by overflowing incontinence at night. She had undertaken an ultra sound scan and looked for a bleeding disorder but all investigations proved normal.
20. In November 2007, the bleeding appeared to have settled but Angela was anaemic and required iron treatment to bring her back into a range that was described as “normal”. Under a general anaesthetic, a medical procedure was undertaken because of the difficulty of doing anything with Angela because of the Retts Syndrome. This was an Implanon procedure which was inserted into Angela but the following month showed no abatement of the problem. Various other treatments including oral contraceptive pills and Depo Provera were also tried but were found to be unsatisfactory.
21. Dr T said that what she proposed was a removal of the uterus leaving the ovaries and tubes in place providing Angela with normal hormones. Thus, only the source of bleeding would be removed.
22. In Dr T’s view which I accept, it was unsatisfactory for anybody to continue to live in the situation where excessive bleeding caused them to be anaemic. Undoubtedly and certainly of significant relevance is that there are hygiene issues which must fall to the responsibility of her mother because Angela cannot provide for herself. Dr T expressed the view that the occurrence of seizures around the menstrual period time were of concern.
23. Dr T’s view was that the effects on Angela were going to be relatively minimal. Apart from the fact that they would resolve the menstrual problems, the nature of Angela’s syndrome is such that she would not have the psychological capabilities to consider a pregnancy into the future. The operation would certainly be a social improvement for Angela’s mother which in itself must improve the quality of Angela’s life.
24. According to Dr T, there was no “downside” to the procedure.
25. Dr T was of the view that the nature and the degree of any risk from the procedure was relatively low because the surgery itself required a small incision in the lower abdomen. She said there was certainly risks of damaging other organs such as the bowel, bladder, ureter, and deep vessels in the pelvis but because there had been no previous abdominal surgery, that was less likely to occur.
26. As for an alternative, or less invasive treatment, Dr T said that they had all been tried and as I have indicated above, failed.
27. Attached to Dr T’s report and incorporated into her opinion was a report from Dr C. Although a letter and not otherwise specifically referred to by Dr T, I propose to take Dr C’s view into account on the basis that it forms part of the investigative process undertaken by Dr T in her capacity as an expert. I am satisfied that Dr T relied upon the information as a second opinion to enable her to form a view consistent with her own.

DR C’S VIEW

28. What Dr C said was that Retts Syndrome is associated with retardation and dementia, markedly reduced muscle tone, autistic behaviour, epilepsy, ataxia and loss of purposeful hand movements. Dr C’s view was that Angela suffered from all of those problems.
29. Taking into account the heavy and painful periods, and the various treatments that Angela has endured, Dr C’s view was that Angela would have much to gain from having her uterus removed. Importantly, he said that the probability of her episodes of epilepsy associated with periods would diminish.
30. Accordingly, Dr C strongly supported the abdominal hysterectomy for Angela.

DR M’S VIEW

31. In a similar way, Dr T obtained the view of consultant paediatrician Dr M in March 2009. Dr M said that Angela was extremely unlikely to ever be in a position to look after her own menstrual hygiene and that a pregnancy would be disastrous. If menstruation could not be controlled medically, the hysterectomy would be the suitable alternative.
32. Thus, Dr T had a number of experts to assist her in confirming the view that she had that all else had been tried and failed and as such, the hysterectomy was the only way to proceed.

THE MATERIAL BEFORE THE COURT

33. The material before the Court was an application by Angela’s mother together with affidavits of the mother and her father and Dr T.
34. I have the benefit of submissions by Ms D who is the solicitor for Angela’s parents as well as those of Mr G of counsel who appeared on behalf of the Director General of the Department of Communities.
35. Mr G did not appear as a contradictor nor did he either support or oppose the application. He announced his appearance to assist the Court and having regard to the dialogue that I had with him in particular, his appearance was extremely helpful. Ms D as well had done much work to get the matter ready to proceed.

INDEPENDENT CHILDREN’S LAWYER

36. My first inclination was to appoint an Independent Children’s Lawyer for the purposes of having a voice for Angela.
37. After canvassing the various options, I decided that that course of action was unnecessary.
38. Section 4 of the Family Law Act 1975 (Cth) (“the Act”) is a definitional section. It provides that an Independent Children’s Lawyer is a person who represents a child’s interests under an appointment made by an order of the court under s 68L of the Act.
39. Section 68L provides that if it appeared to the court that the child’s interests ought to be independently represented, the court may make an appointment. The responsibility for the funding and formal appointment of a person becomes the responsibility of the regional legal aid body.
40. I find in this case however that it is not in Angela’s best interests to have an Independent Children’s Lawyer for two reasons.
41. The first reason is that the Independent Children’s Lawyer’s role is to investigate. I accept in this case that there has been a comprehensive wide-ranging investigation already carried out by not only the legal practitioner for the parents but also Dr T. Secondly, even if I had an Independent Children’s Lawyer, it could only be in the circumstances of acting as a contradictor. Here I have the benefit of Dr T as well as other medical practitioners setting out the “downside” of any operation as well as the Department of Communities indicating neither opposition nor support. That is not put in a negative way but rather that there is no need for the Department to adopt a particular position here because of the state of the evidence. Importantly, to the extent that public policy considerations are relevant, the Department does not oppose the position of Angela’s mother. The second of those two considerations requires an examination of s 68LA which provides as follows:

(2) The independent children’s lawyer must:

(a) form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and

(b) act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

(3) The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

(4) The independent children’s lawyer:

(a) is not the child’s legal representative; and

(b) is not obliged to act on the child’s instructions in relation to the proceedings.

Specific duties of independent children’s lawyer

(5) The independent children’s lawyer must:

(a) act impartially in dealings with the parties to the proceedings; and

(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

(c) if a report or other document that relates to the child is to be used in the proceedings:

(i) analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

(ii) ensure that those matters are properly drawn to the court’s attention; and

(d) endeavour to minimise the trauma to the child associated with the proceedings; and

(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

42. In considering those statutory matters, I am satisfied that there is no benefit to Angela in having an independent voice in this case.

DISCUSSION

43. In all cases involving parenting orders, the parents of a child have equal shared parental responsibility. Normally as one would expect, parents are able to make decisions within their responsibility about medical treatment for their children. There is one exception to that rule which has traditionally placed certain medical treatment outside of the responsibility. These have been described as special medical procedures.
44. In The Secretary, Department of Health and Community Services v J W B and S M B [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992) (Marion’s case), the jurisdiction to authorise special medical procedures was discussed at length.
45. In Marion’s case, the focus of the attention of the High Court was on the fact that the medical procedure had two important elements. The first was that it was a major invasive medical procedure. The second was that if carried out, its effects were irreversible. The High Court was very concerned for there to be court intervention and for the Court to take responsibility for the decision because of the significant nature of that decision and the obvious consequences if it was wrong.
46. Section 67ZC of the Act provides the Court with a jurisdiction to make orders relating to the welfare of children and if such an order is to be made, the Court must regard the best interests of the child as the paramount consideration. It is acknowledged that that jurisdiction is limited.
47. It is with that power authorizing the Court’s jurisdiction guided by the approach set out in Marion’s case that I am determining this application.
48. There is a fine line in this case between the decision falling within normal parental responsibility and outside of it because of the fact that Dr T says that this is not a procedure for sterilisation purposes. However, it is clear that it is invasive and it is irreversible. To the extent that it is necessary to find therefore that this decision is outside of the parental responsibility of the mother and father, I do so on the basis of the invasive nature and irreversible effect of the procedure.
49. It is important then to consider whether the surgery is necessary from a medical perspective for the child’s health and from the law’s perspective, in her best interests. The medical perspective looks at the shorter term whilst the law’s perspective is much longer.
50. The evidence is that the procedure is urgent and necessary. As such, it is a matter that requires health consideration now. The longer term consequences are less relevant despite the irreversibility of the procedure because as I have earlier mentioned, Angela is never going to have the benefits of a normal teenage and adult life. As such, the immediate issue is the more critical. A fundamental consideration is also the risks to Angela’s life as well as her general health.

THE DETERMINATION

51. Chapter IV of the Family Law Rules 2004 sets out the pathway to be followed by a court.
52. Rule 4.09 says:

(1) If a Medical Procedure Application is filed, evidence must be given to satisfy the court that the proposed medical procedure is in the best interests of the child.

(2) The evidence must include evidence from a medical, psychological or other relevant expert witness that establishes the following:

(a) the exact nature and purpose of the proposed medical procedure;

(b) the particular condition of the child for which the procedure is required;

(c) the likely long-term physical, social and psychological effects on the child:

(i) if the procedure is carried out; and

(ii) if the procedure is not carried out;

(d) the nature and degree of any risk to the child from the procedure;

(e) if alternative and less invasive treatment is available — the reason the procedure is recommended instead of the alternative treatments;

(f) that the procedure is necessary for the welfare of the child;

(g) if the child is capable of making an informed decision about the procedure — whether the child agrees to the procedure;

(h) if the child is incapable of making an informed decision about the procedure — that the child:

(i) is currently incapable of making an informed decision; and

(ii) is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future;

(i) whether the child’s parents or carer agree to the procedure.

53. I have set out above the exact nature of the medical procedure. I am satisfied on the evidence of Dr T of its nature and extent.
54. I have set out the particular condition from which Angela suffers and for which the only remaining option is a hysterectomy. I am not making this order for the purposes of making Angela’s parents’ life easier. I am doing this on the basis that Angela’s pain and suffering seriously affects her quality of life. I am also making the order on the basis that her susceptibility to epilepsy seizures puts her seriously at risk in an environment where control of her menstrual cycle has been unsuccessful leaving this as the only option.
55. I have set out the likely long-term physical, social and psychological effects on Angela if the procedure is not carried out. That is, she will be resigned to a position where her mother has to deal with constant problems in which Angela is not only physically at risk from epilepsy seizures but also having to endure pain and hygiene discomfort. If the procedure is carried out, it is clear that her quality of life will improve. There can be little improvement in her social and psychological effects having regard to the Retts Syndrome but there is not doubt that her physical condition will be better.
56. The nature and degree of the risks to Angela of this operation are minimal. I rely upon the evidence of the medical practitioners to form that view.
57. The medical evidence indicates clearly the limited nature of the invasiveness of the treatment but it is still invasive and therefore carries with it risks. I am satisfied however that the risks associated with the treatment are not outweighed by the longer term benefits for Angela.
58. The ultimate decision must be made on what is in Angela’s welfare. The quality of her life must improve by virtue of this treatment. I am satisfied therefore it is necessary for her welfare.
59. Because of the Retts Syndrome, Angela is not capable of making any decision about the procedure. Angela will never be in a position to make a decision about her own welfare.
60. I am satisfied in this case that both of the parents who have provided evidence to the Court agree that this is the appropriate course of action for their daughter.

OUTCOME

61. On the evidence before the Court, the application of Angela’s mother must succeed. I am satisfied that all of the issues required of the Court have been satisfied on the evidence presented and that there is no further material that would advance the argument.
62. Accordingly, I propose to grant the application in terms of the orders that I pronounced in Court.

I certify that the preceding Sixty Two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 17 February 2010