TLS nee J v. RCS

FCMC 1637 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NUMBER 1637 OF 2012

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REASONS FOR DECISION
(Summons on Medical Treatment)

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Introduction

1.  This is the Petitioner Mother’s (“Mother”) application by way of Summons dated 20 December 2013 (“ADHD Summons”) seeking the following orders :-

“(1) The Petitioner be at liberty to appoint Dr. Hannah Tsang as the treating Paediatrician for the children B a boy born on 30 June 2007 (“B”) and A a boy born on 30 June 2007 (“A”);

(2) That the Petitioner be at liberty to administer any medication to B and A as prescribed by Dr. Hannah Tsang including but not limited to medication for Attention Deficit Hyperactivity Disorder (“ADHD”);

(3) Access pursuant to Paragraph 1 (a)(i) of the Order dated 27 August 2012 be subject to the Respondent Undertaking to the Court and to the Petitioner to administer any ADHD medication as prescribed by Dr. Hannah Tsang at such times and in such dosage as directed;

(4) In the alternative to paragraph 2 herein access to be supervised by a qualified nanny during access pursuant to Paragraph 1 (a)(i) of the Order dated 27 August 2012;

(5) Costs in favour of the Petitioner.”

2.  It is unfortunate that the parties have to come to Court for resolving medication issues over the younger set of twins A and B (“the children’), who are of the age of 6 years and 9 months at the time of this hearing, and sadly both of them had been diagnosed to have suffered from Attention Deficit Hyperactivity Disorder since around October 2012.

3.  Joint custody of two sets of twins had been granted by the Court with care and control to the Mother.  Father was granted conditional defined access which forms other part of the interlocutory proceedings in this case. 

The Mother’s Application

4.  Very briefly, the Mother’s case is that the children are in pressing need of medical treatment.  Since the prognosis was confirmed back in October 2012 by Dr Tara Lavinson who is a child psychologist after the school had mentioned their concern over the children’s then behaviour, there had been administration of psychologist tests and observation over a prolonged period.  The Mother in her 14^th Affidavit stated that ever since the children were toddlers, she found their behaviour very difficult.

5.  The Mother also referred to an incident happened about a year ago in 2013 whilst the children were playing rugby, they hit another child in the mouth giving that child bleeding in the gums.  The children were seen not able to focus on what was going on in the game and quickly became distracted or disruptive.  On that occasion, the coaches had a stern conversation with the children with the Father also present. 

6.  The children’s problems have become serious.  The school they are now attending suggested either medication be given on trial or some form of one on one support to be given.  The school counsellor Clara in her email dated 14 January 2014, after reporting both A and B are not meeting the grade level expectation and also their academic performance in school, further confirmed the children suffered from ADHD.  Their report cards would be given in narrative form as opposed to the usual format as such might affect their self esteem when comparing with their peers.

7.  The children themselves also had expressed their frustrations and expressed that they need help.  Dr Tsang in her recent email dated 20 February 2014 to the parties (at pages 2118 to 2119 of Bundle P7) said :-

“……But as much has already been done over the past 1+ years, I also hope that we can all work together to expedite the process as the boys have expressed their frustrations and expressed the desire for further help. The goal is to continue taking steps forward to facilitate their learning and help them reach their potential academically, socially behaviorally and emotionally.”

8.  On the 2^nd day of hearing, another email from Dr. Tsang that morning which was sent to the parties around 10:24 a.m. was produced to this Court (marked as Exhibit “P-3”).

9.  It is the Mother’s case that the ADHD problems have not only affected the children academically and also their social lives amongst friends and peers or at schools, not to say about their self esteem. It has now come to the stage that proper treatment including medication is warranted. 

10.  It is also the Mother’s case that the children need to be placed in a ‘settled’ environment whilst taking the trial on medication and such trial period takes a few months.  With the relocation to Australia in coming July this year (which issue could only be resolved lately by the Father’s signing the Consent Summons and thus the 5-day trial scheduled 18 March 2014 could be vacated), there is no time to defer proper treatment which the children now needed, not to mention that the ADHD problems had been lasting for quite some time with the children present condition unsatisfactory.    

The Father’s Opposition

11.  The Father, as one of the custodial parent, would only agree to paragraph 1 of the Mother’s Summons that Dr. Hannah Tsang (“Dr. Tsang”) be appointed as the paediatrician for A and B.  Whilst acknowledging the children’s ADHD problems and there ought to be some form of treatment plan (again this came about from the Father at a late stage as the Mother had repeatedly said), the Father would not agree to give carte blanche advance approval for whatever medication proposed by Dr. Tsang to be given to the children.  The Father through his Counsel Mr Clough made his position clear in that he would agree to treatment (including medication prescribed) by Dr. Tsang only if such course is also recommended or supported by Dr. Jadis Blurton (“Dr. Blurton”).  Dr. Blurton is the Clinical Director of The Family Development Center.  It is submitted by Counsel Mr. Clough that paragraphs 2 and 3 of the Summons, if granted, would give Dr Tsang absolute authority.  

12.  On the 1^st day of hearing, an urgent attempt was made to try and contact Dr. Blurton for any preliminary views on giving medication to the children over their ADHD problems.  The reply received the following day was that she is not in such a position at this stage without seeing the children.  

13.  Counsel Mr. Clough also submitted that any treatment by way of medication is a ‘parenting decision’ which should be exercised by the parents and not to be delegated by the court to the treating doctor.  It is fundamentally wrong in principle for the court to make an order delegating a matter within its jurisdiction to a doctor.  Mr Clough cited an example that if a doctor prescribed antibiotics, to give or not to give the child such antibiotics should be the parents’ choice, or, it is a ‘parenting decision’. Only when the parents disagree amongst themselves, the court then decides.

Mother’s position on Dr. Blurton’s involvement

14.  The Mother has no objection to Dr. Blurton to provide psycho educational assessments of the children since such reports would be helpful to the school.  It would also provide an overall picture of the children’s strengths and weaknesses for better treatment planning.

15.  What the Mother disagrees is to have Dr Blurton’s  ‘support’ or ‘connivance’ (if I may use such phrases) on Dr Tsang’s course of treatment, including any medication prescribed by Dr Tsang, before the children could be treated.

16.  Counsel Miss Irving in her submission posed the question that how about if Dr Blurton does not ‘support’ or ‘connive’ with Dr Tsang, or holds a different view ?  The parties would then have to be back to court again as exactly the same as they are now in for the court’s assistance.

Best interests of the Children

17.  From time to time, and also stated in one of my earlier reasons for decision in this case on defined access, a court when deciding questions relating to children, the first and paramount consideration to have regard to is the best interests of the children (see Section 3 (1) of the Guardianship of Minors Ordinance, Cap.13).

18.  There is no exception for my decision in the present application. 

19.  Although the parties have produced extracts of various medical articles, journals and publications on ADHD together with recommended treatment, I am not prepared to pick and choose from any of them or to prefer any one of them to be better than the other without the benefit of hearing direct evidence from medical experts.  Counsel Mr Clough produced 2 sheets of extracts from Wikipedia on the medicine ‘Methylphenidate (trade name Concerta, Methylin, Ritalin, Equasym XL)’ and is marked Exhibit “R-1”.  The medication ‘Concerta’ was mentioned in an email from the Mother to the Father dated 29 January 2014 (Exhibit “P-2”).  In my decision, such piece of information is of no assistance to the Father’s case.  The court is not in any position to say whether a particular medication is suitable for a particular person.  This is for the treating doctor to decide and in this case, is Dr Tsang.

Discussion

20.  Firstly, on the available evidence, I am satisfied that the children’s ADHD problems persist over a couple of few years.  It is a fact that the degree and extent of recovery fall short of satisfactory despite all efforts in different ways and by various means attempted by the primary carer Mother who having the day to day care and control of the children.

21.  The latest situation and need of the children have been clearly stated by Dr. Tsang in her email dated 20 March 2014 (Exhibit “P-3”) which I now recite below and those important sentences are underlined :-

“….A and B, currently 6 years of age, are recommended for both behaviorial therapy and a trial of stimulant medications. The current behaviorial therapy at home, school and outside of school/home that they have been receiving should be continued. Learning support and accommodations at school should be continued. A trial of medications with the aim to augment the behavioural therapy and current strategies being taught and utilized at home and school is strongly recommended in view of the significant functional impairment reported at school and home for learning, academic performance, behaviours and social interactions. The safety of the children, their interest in learning and their self esteem are specific issues that indicate functional impairment both at home and school. The boys have expressed their frustrations and desire to have additional support and help. The decision for using the medication for treatment of ADHD will be reviewed and monitored closely if the trial is commenced. The medications can be started or stopped at anytime if clinically indicated. But the usual expected trial period can range from 2-4 months in most cases. The decision to continue the medications will only be considered if the benefits of stimulant medications significantly outweigh the costs for the boys.”

22.  Secondly, I am also satisfied on the evidence that the Father, who had not had much time of access in the past and this is undisputed, would not be in any better position than the Mother to tell the court the day to day behaviour of the children at home. It is only the Mother who can say whether there had been any improvement over the children on their ADHD problems with the passage of time.  I am not at all convinced that the Father who had had exercised only minimal access since 2012 knows better than the Mother over the children’s problems.

23.  With the Father’s acknowledging Dr. Tsang’s expertise and accepting her as the treating doctor on ADHD, the first question thus fall to be asked is whether the children’s best interests can be served if they are to be medically treated by Dr. Tsang now; or, as of the Father’s position that any course of medical treatment by Dr. Tsang need to be ‘supported’ or ‘connived’ by Dr. Blurton ?

24.  The next question to be asked is whether there is any issue that the court, in granting the Mother’s application, is delegating ‘parental decision’ to the treating doctor, namely, Dr. Tsang and, as Mr. Clough submitted, this is fundamentally wrong in principle ?

25.  Miss Irving in paragraph 10 of her written skeleton submissions said it is illogical ‘to agree to someone being the doctor but not agreeing to the recommendation made by that doctor!’  I agree.   With the Father accepting Dr Tsang as the treating doctor for the children on ADHD, he would not be in any position to disagree with Dr Tsang’s recommendation (including medication and advice) on treatment. Whether the Father (or the Mother) would, in agreeing with the recommendation, then be bound to implement them is quite a separate matter which touches upon the question of ‘parenting decision’.  I will deal with this separate matter in the following paragraphs.

26.  I accept the Mother’s evidence about the present condition of the children which was supported by Dr Tsang’s last email of 20 March 2014 (Exhibit “P-3”).  It is proved to the satisfaction of this court that the children are in need of immediate help and support.  I do not accept the Father’s case that he accepts any course of treatment (including medication) prescribed by Dr Tsang only if Dr Blurton so supports or recommends.  The court must at all times ensure the children’s best interests are secured and not to give way to their parent’s choices.  The Father requires Dr Blurton’s views as a back-up or second opinion, which the Mother has no objection, is his choice and preference which should not be taken as a ground of objection to Dr Tsang treating the children (including prescribing medication) if this is in the children’s best interests. 

27.  Therefore my first decision is that Dr Tsang can provide treatment over the children’s ADHD problems (including prescribing medication) which she professionally sees fit and appropriate without the need of support or recommendation of Dr Blurton as the Father so suggested.

28.  The Mother has no objection on administering medication prescribed by Dr Tsang.  The objection comes from the Father and thus issues of ‘parenting decision’ and that the court is delegating ‘parenting decision’ to Dr Tsang is fundamentally wrong in principle are raised by Mr Clough in his argument. 

29.  Miss Irving submitted that in all cases where parents come to seek the court’s intervention or decision due to them not being able to compromise between themselves on their children’s matter, one parent’s views will be subverted by the court’s decision.  The court upon making its decision is taking over or replacing the rights of that parent whose views not being upheld by the court.  This is exactly the court’s function. 

30.  In my decision, after the doctor has given treatment and whether or not that treatment includes medication prescription, to implement it or not is a ‘parenting decision’ of the parents.  In the exercise of such ‘parenting decision’, the parents must always have in mind the best interests of the children.  However, if the parents are not agreeable on the exercise of such ‘parenting decision’, the court must intervene.  The court, in the discharge of its function for the best interests of the children, could not be said to be ‘delegating’ the ‘parenting decision’.   

31.  Had Dr Tsang as the treating doctor and paediatrician decided the children needs to take certain medication prescription, she is professionally qualified to make that decision.  Why then her decision has to be supported or recommended by Dr Blurton ?  Moreover, Dr Blurton is a psychologist dealing with the psycho educational assessment of the children.   As Miss Irving rightly submitted, what happen if Dr Blurton holds a different view and would the treatment be then suspended with the parties coming back to the court again?     

32.  In my decision, there is no question of the court delegating ‘parenting decision’ as Mr Clough so submitted.   

Decision

33.  For the above reasons, I find for the Mother on her Summons in the following terms.  The Father’s contention fails.

Orders

34.  I now make the following orders :-

(a)  Dr. Hannah Tsang be appointed as the treating paediatrician for the children B a boy born on 30 June 2007 (“B”) and A a boy born on 30 June 2007 (“A”) on their ADHD problems;

(b) The Petitioner (Mother) be at liberty to administer any medication for treating the children’s ADHD at such times and in such dosage as prescribed by Dr Hannah Tsang;

(c)  The Respondent (Father) do administer any medication for treating the children’s ADHD at such times and in such dosage as prescribed by Dr Hannah Tsang during the time of his access;

(d) Penal Notice be endorsed on this Order.

35.  As the parties will be arguing costs of the Petitioner’s Summons on relocation tomorrow (25 March 2014 at 10:30 a.m.), I will reserve the question of costs of this Summons to be heard together.