Determining a Child’s Best Interests when Parents Refuse Medical Treatment—CAHS v Kiszko & Anor [2016] FCWA 19

Excerpt

On March 24 2016 the Family Court of Western Australia was called upon to consider whether parents refusing curative medical treatment for their six-year-old son was in his best interests. Unlike the law surrounding adult refusal of medical treatment, where the common law has unequivocally determined that individual autonomy prevails over other competing rights and interests,¹ the law around parents refusing medical treatment for a child requires a different approach. In these circumstances, the courts focus on the child’s best interests. This consideration prevails over all other rights and interests and ultimately limits the scope of parental authority (see for example Department of Health and Community Services v JWB and SMB [1992] 175 CLR 218; Minister for Health v AS [2004] 29 WAR 517; see also Re A (Children) (Conjoined twins: surgical separation) [2000] 4 All ER 961). These issues were considered in detail in CAHS v Kiszko [2016] FCWA 19 (Kiszko) with Thackray CJ concluding that the “prospect of the long-term cure” were in the child’s best interests” (¶82) and outweighed the parent’s right to refuse. …