In Re. C (A minor) (Wardship: Medical Treatment)

1993, No. MP 1218

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Headnote

Wardship - whether Court should overrule parents' refusal to consent to an operation on a 15-day old baby who will die without it.

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J U D G M E N T

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1. At about 3.30 p.m. on Friday, 14th May 1993, on the application of the Director of Social Welfare, I made an order making an, as yet, unnamed 15-day old baby girl, a ward of this Court. I committed the care and control of the ward to its parents and I authorised doctors at the Prince of Wales Hospital to perform an immediate emergency operation upon the ward. Because of certain observations of Lord Donaldson in Re. C (A minor) (Wardship: Medical Treatment) [1989] 3 WLR 240, I said that I would reduce my reasons into writing and deliver this judgment in open court. I have ordered that this case be referred to only as Re. C and that the identity of the parents and child be not made public. I know I can rely upon the Hong Kong Press to respect the obvious good sense of anonymity in relation to the unfortunate parties to this matter.

2. The parents are lawfully married and the mother is 33 and the father is 35. They have two other children, namely 2 girls aged 6 and 4 respectively.

3. The 3rd child was born on 30th April 1993. Shortly after birth she suffered an attack of cyanosis (turning blue due to lack of oxygen) whilst feeding. She was admitted to the Neonatal Unit of the Prince of Wales Hospital where after investigation she was found to have bilateral broncho-pulmonary foregut malformation or sequestrations with oesphageal connection. This means that the child has an extra pair of rudimentary lungs which are attached to the oesophagus. She was also found to have other congenital abnormalities, namely patent ductus arteriosus (PDA), bifid vertebrae at T7 and T8 and hemi-vertebra at L2 level. Fetus ductus arteriosus is a connection whereby some blood by-passes the lungs and flows straight into the main artery which carried blood from the heart to the rest of the body. PDA occurs when this connection which should seal up naturally after birth fails to do so. The effect of the alternative blood flow may place additional strain on the heart and the lung. The other matters relate to the vertebrae and indicate that three are abnormal. Two are butterfy vertebrae and one is a hemi-vertebra. In a hemi-vertebra there is a missing vertebra and in the bifid vertebra there is a gap.

4. As a complication of the foregut abnormality, the child developed septicaemia which was treated with antibiotics, ventilation, and exchange transfusion. The child's treatment was stabilised and the sepsis was brought under control although it is still in the body.

5. Imaging studies by the Department of Diagnostic Radiology and Organ Imaging revealed the extra lungs and it seems likely that the extra lungs are the likely source of sepsis. Further, because the abnormality is connected to he oesophagus, there exists a point of entry for gut organism.

6. Dr. Kelvin Liu told me quite frankly that without any surgical intervention the ward will die in a short time. He told me that this was a very rare case and the operation that he would like to carry out has not been performed before in Hong Kong. He believes that there is a 50/50 chance that the operation would be successful in which case the ward will only be left with her spinal problems, which are in no way life threatening and can be dealt with later by the orthopaedic team. The longer the delay before surgical intervention, the more chance there is of damage to her main lungs. In addition to the operation suggested, Dr. Liu told me that he would also require to carry out an angiogram which had only a very small risk attached to it.

7. The child has no chance of survival unless the infected lungs are surgically removed.

8. The position is therefore quite stark. Without the operation the ward will certainly die. She may well die during the operation. However, there is an even chance that the operation will be a success and, if so, she will be able to lead a relatively normal and healthy life thereafter.

9. Both the doctors and the social workers have explained the position to the parents on several occasions and nevertheless they have refused to give their consent to this operation.

10. The father, who I was not able to hear because he was travelling in China, had told the social worker, Miss Chan, that he would prefer to allow the child to die from natural causes than risk surgery with possible complications and further suffering thereafter. This decision was apparently arrived at after consultation with members of his extended family.

11. The mother was able to attend Court and gave evidence before me and told me quite frankly that she understood the medical position but, in any event, I explained it to her yet again. She told me that the doctors could not guarantee success which is, of course, quite correct. She was very worried as to whether, if the child survived the operation, she would be able to live a normal life. She was very worried that if the operation was not a complete success, but the ward lived, she might be very handicapped. She asked me on several occasions what help she would be given if the child was handicapped and, of course, I could not give her any assurances on that score. She was obviously unhappy at the prospect of the child being handicapped and suffering therefrom. She was not prepared to run the risk of the operation. She told me that her husband agreed with her position. I allowed her to discuss matters again with her family who were present in Court and also with the social workers who were also good enough to be present. However, she was adamant that she would not consent.

12. I have no doubt that the decision which the parents have come to was a painful and sincere one. Their views on the matter are worthy of the greatest respect by this Court and I thought long and hard before deciding to overrule them.

13. It is clear on the authorities that the question I have to ask myself is what is in the best interest of this child. This is clear from the English Court of Appeal decision in Re. B (A minor; Wardship-Medical Treatment) [1981] 1 WLR 1421. In that case, a Down's Syndrome (Mongolism) child suffered an internal blockage and required an urgent operation without which she would die. If the operation was performed the child might have lived a short time but her life expectancy was more likely to be in the region of 20/30 years. Her parents decided that it was kinder to allow her to die. The judge respected the parent's wishes but the Court of Appeal made an order authorising the operation.

14. The evidence in that case was that the child would have been very handicapped both physically and mentally. Templeman L.J. put the issue thus in the light of the parent's submission that "nature had made its own arrangements to terminate a life which would not be fruitful and nature should not be interferred with,"

"The question which this Court has to determine is whether it is in the interest of this child to be allowed to die within the next week or to have the operation in which case, if she lives, she will be a mongoloid child, but no one can say to what extent her mental or physical defects will be apparent. No one can say whether she will suffer or whether she will be happy in part. On the one hand, the probability is that she will not be a cabbage as it is called when people's faculties are entirely destroyed. On the other hand, it is certain that she will be very severely mentally and physically handicapped."

15. He held, and Dunn L.J. agreed with him, that the child should have a chance of life and be able to live the normal life span of a mongoloid child with the handicaps and defects and life of a mongoloid child. It was not for the court to say that life of that description ought to be extinguished.

16. That case was a very different case from the one before me because I am told that if the operation is successful, the ward will enjoy a relatively normal life and will only be left with her spinal problems which are not uncommon and certainly not life threatening.

17. Mr. Bradley, for the Director, who handled this matter with consummate tact and understanding, also referred me to Re. C, a reference to which I made at the outset of this judgment. In that case, the medical evidence indicated that there was no hope for the child and the judge and the Court of Appeal agreed that the child should be left to die with dignity and be treated only to the extent of easing her suffering until death. That case was on the facts a clear one as nothing could detract from the plain, simple and sad fact that, despite the wonders of modern medicine, nothing could be done to save that child.

18. Although as I have said, it is a very serious matter to overrule the wishes of caring parents who have carefully weighed up all the factors before refusing to consent to an operation, nevertheless, it is the duty of this Court to consider what is in the child's best interests. With no surgical intervention she will die.

With surgical intervention, she may also die. However, there is an even chance that this rare operation will be a success and, if so, the evidence I have suggests the child will be able to lead a relatively healthy and normal life. Nothing is certain in this life and I can give the parents no more guarantee than could the doctors. Neither can I assure the parents as to the level of support they may receive if the child is handicapped. However, the evidence is that if the operation is successful, she will not be handicapped as a result of any condition which gives rise to this operation. I have a feeling that the parents have also taken into account spinal problems about which no evidence was placed before the Court although the doctors agreed that there was a range of procedures available which could help. It is too soon for orthopaedic specialists to consider the matter because this child has got a rather large hurdle to overcome before that becomes relevant.

19. I have no doubt at all that it is in the best interests of the child to undergo this operation and prior thereto to undergo the angiogram. There is a real chance she may survive and enjoy a normal life and I am not prepared to condemn her to a certain death without giving the doctors the chance to correct nature's imperfections. If she does not survive, then everyone concerned will know that everything possible was done to give this poor baby a chance of a relatively normal life.

20. Those then were the reasons which led me to make the child a ward of Court and permit the doctors to carry out the surgical procedures which I have mentioned. As soon as I had announced my decision, I phoned Dr. Lui and informed him personally that the operation could go ahead and that he need not wait for the sealed order which was, by then, on its way to Shatin.

21. Naturally I make no order as to costs.

Postscript

I have received the following information from Mr. Bradley.

The operation, which lasted 6 hours, was carried out by 3 surgeons. The parents were present throughout and expressed great concern for their daughter. The operation appeared to be successful and on 18th May the baby was taken out of intensive care and returned to the Nursery Ward.

As at 20th May progress is still satisfactory. The baby has mild pneumonia which is being treated by antibiotics and physiotherapy. Her condition is regarded as stable and progress continues.