Dr David Hunter was recently interviewed by The Project to discuss the ethical issues of the six year old boy, Oshin, diagnosed last year with medulloblastoma – a brain cancer. He took the core issue to be the State’s obligation to intervene to protect its most vulnerable members – this mandates the State at least considering intervening in cases like this. Treatment would typically be with chemotherapy and radiation therapy and this would have serious side effects such as intellectual impairment, dysfunction of hormones including growth hormones, hearing loss and cataracts.

With treatment Oshin’s parents were told he had a 50-60% chance of surviving for five years with this treatment, without treatment he would probably live for another six months to a year. They felt that the side effects of the treatment and the unpleasant nature of the treatment itself was too much for the relatively little benefit offered and decided that they just wanted to move to palliative care and focusing on making Oshin’s remaining life as good as possible. The treating physicians felt that this was the wrong decision and took this case to court to request the enforcement of treatment. The court decided to require chemotherapy but not radiation because emerging evidence suggested this still had a good likelihood of success but minimised the negative side effects. Chemo worked to some degree but not to the degree hoped so the hospital took the case to court again to seek the addition of radiation therapy but the court declined to proceed largely on the basis that the odds of success had fallen to 20%.

But there is a balance between protecting the interests of children and violating the rights of parents, and even potentially harming children in the name of protective intervention which we don’t need to look too far back into Australian history to see the potential consequences of this kind of State intervention.

In general where parents are refusing to consent to life saving urgent treatment on behalf of children courts have often over ruled their wishes, most of the case law around this has been developed in cases where the medical outcomes are well known and likely to succeed, the intervention is extremely urgent (blood transfusions for example) and relatively side effect free. And thus the decision has typically been that what experts agree is in the child’s medical best interests is what is in the childs overall best interests. But its worth noting the legal saying that hard cases make bad law. After all we don’t generally require that parents do their best for their children just that they do well enough.

This case deviates from those cases in a number of ways:

1. Medical uncertainty – don’t know whether the treatment will succeed or not, and even the estimates are uncertain.

2. Room for reasonable disagreement among experts regarding the appropriate course of action. (hospital ethics committee was divided).

3. Quite burdensome treatment – will feel very sick during the process.

4. Quite high likelihood of negative side effects – intellectual impairment, dysfunction of hormones including growth hormones, hearing loss and cataracts.

5. Relatively low chance of success, and even the success is not a great outcome.

6. Core dispute is a dispute about value not medical facts – what is more important quality of life or quantity? Who can answer that question?

Given these differences from the standard cases where this occurs makes Dr Hunter at least skeptical that the court intervention was the best course in this case.

The episode will be broadcast on the 14th of June.