Dr Srinivas Bolisetty Deborah Foy

}  A critical issue in the management of pre-term labour is the counselling and advice to parents about the survivability and future of a pre-term baby.

}  Given the likelihood that many pre-term babies, particularly those born less than 25 weeks may not survive or if they do, many will have chronic lung disease and other possible disabilities, what advice should parents be given.

}  Queensland Clinical Guideline: Perinatal Care at the Threshold of Viability suggest: ◦  Convey a compassionate but realistic assessment of

the outlook; ◦  Provide the most accurate prognostic morbidity and

mortality data; ◦  Advise family that ability to give accurate short and

long term prognosis for a specific baby remains limited; ◦  That even with resuscitation and NICU care, many

babies of very low gestational weight may die”

◦  The possibility that even if resuscitation and is successful, there may be future situations where withdrawal of life sustaining interventions is considered;

◦  Involve other paediatric specialists.

Queensland Clinical Guidelines ©State of Queensland (Queensland Health 2014 under CCANCND.

}  It is important to remember that the defence of reasonable “professional peer opinion” set out in section 59 of the Wrongs Act 1958 (Vic) does not apply to the giving of a warning or information about a risk if it is associated with the provision of a professional service.

}  (see s.60 of the Wrongs Act (Vic) 1958, and similar provisions in ss.5O-5P Civil Liability Act, NSW, s.41 Civil Liability Act SA 1936, ss.21-22 Civil Liability Act 2002 Tas, ss5PB Civil Liability 2002 WA, ss.21-22 Civil Liability Act 2002 Qld. )

}  What happens if a dispute arises between the parents and the treating team?

}  Two routes to a judicial decision for children: ◦  The Family Court of Australia; ◦  The State Supreme Courts.

}  Both have a parens patriae jurisdiction with respect to children but there are significant differences.

Relevant case law on decisions concerning treatment of pre-term babies Relevant case law on treatment of pre-term infants includes recent decisions of the Family Court of Australia – Re Baby D(No.2) and Re Baby R, decided last month in Victoria by the Chief Justice of the Family Court.

}  Differences between Family Court and Supreme Court: ◦  Supreme Court – wider jurisdiction; ◦  Family Court has limitation on who can be a party; ◦  Family Court is required to consider approving use

of “special medical procedures” for children such as gender dysphoria, donation of child tissue such as bone marrow; ◦  Has jurisdiction to make a parenting order and in

doing so must consider “best interests of child as paramount” by reason of Family Law Act 1975.

}  Re Baby D (No.2) [2011] FamCA 176 916 March2011)

}  Baby D: ◦  Was a twin born at 27 weeks in August 2010; ◦  Suffered upper airway obstruction with narrowed

larynx; ◦  Could only maintain patent airway by way of

endotracheal tube; }  Both parents and medical practitioners wanted

to remove the endotracheal tube and both were aware that this may result in the death of Baby D.

}  At time of an earlier removal of tube on 17 November 2010 under anaesthetic, the tube had been difficult to remove and reinsert in theatre and Baby D suffered severe hypoxic injury to brain but her brain stem appeared to be undamaged.

}  She could breathe unassisted by mechanical or CPAP ventilation but required the tube.

}  The longer the tube was in situ, the more damage to her airway.

}  She had no underlying irrecoverable life-threatening problem.

Cont: Complication - if tube removed, likely that airway would not remain patent and she would struggle to breathe.

The Hospital Clinical Ethics Committee recommended that the parents seek a declaration from Court that it was lawful to remove tube and sedate Baby D in the event that airway did not remain patent as her efforts to breathe would cause a high level of distress. Sedation would likely suppress respiration.

}  Court considered that parents had power to give authorisation for decisions ordinarily involving parental responsibility.

}  Under s67ZC of the Family Law Act 1975, the Court has

power to make orders concerning the welfare of children.

}  Family Court concluded that the decision was within the ambit of parental responsibility.

}  Judge stated, “..the law should tread very lightly in seeking to intrude in or impose itself upon those decisions.. dilemmas for parents and doctors alike (which) are predominantly medical.”

}  The Court made an order to authorise the removal of the tube and palliate Baby D if necessary.

Baby R (Life Support) [2015] FamCA 449 (22 May 2015)

}  Baby R born at 25+4 weeks. She was born in poor condition with HR < 60bpm and no respiratory effort.

}  She required ventilation, surfactant, inotropes, and fluid. She also suffered bilateral grade 3 intraventricular haemorrhages. She was at significant risk of long-term neurodevelopmental problems.

}  Evidence of treating team was that she was in pain and suffering.

}  The parents were in dispute as mother accepted medical opinion that withdrawal of care was in Baby R’s best interests but father did not.

}  Father filed application in Family Court seeking an order to restrain withdrawal of treatment by hospital.

}  Medical evidence given and the father obtained a second opinion to the same effect as the hospital.

}  After a second opinion obtained by father, he consented to withdrawal of care. A parenting order was made to the effect that the parents authorised the hospital to discontinue life support and provide relief from suffering.

}  TS&DS v Sydney Children’s Hospital Network, [2012] NSWCS 1609 Supreme Court of NSW.

}  An 11 month baby (who was not pre-term) but was born with Trisomy 21, Patent Ductus Arteriosus (resolved surgically) and Pyruvate Dehdydrogenase Deficiency.

}  He was CPAP ventilated.

}  His parents applied to the Supreme Court for an order requiring the hospital to mechanically ventilate him rather than use CPAP.

}  Baby suffered profound developmental delay, hypertonia, blindness, seizures, elevated lactate levels, extensive changes to his brain and was only able to be fed by naso-gastric tube.

}  Medical practitioners gave evidence that his prognosis was grim and that the only effective treatment was palliation.

}  The Court accepted the evidence that mechanical ventilation would cause pain and suffering as his clinical condition was terminal.

}  The Court said, “What matters is his diagnosis, prognosis and then to consider what is his in his best interests.” (para.66)

}  The Court also agreed with the parents that the expression “quality of life” was not useful, it was impossible to determine in the case of a baby and necessarily reflected the individual values of the assessor. The judge refused to engage, “in an ill defined process”.(para 68-69)

}  One matter of particular importance was “the nature of the doctor patient relationship” saying,

“if the Court was to uphold the application, it would in substance be intruding into the doctor patient relationship by requiring the treating doctors to do something which they consider would be contrary to their professional obligation.”(para.83)

}  Essentially, the Court referred to a UK decision, Bolam v

Friern Hospital Management Committee, “No one can dictate the treatment…there are checks and balances..the inevitable and desirable result is that choice of treatment is in some measure of joint decision.” (para.86) [1957] 2 All ER 118

}  The Court did not uphold the application and said, “In the exercise of the Court’s parens patriae jurisdiction, it will be a rare occasion when a court by mandatory order of the kind sought here would ever be made…if the court is satisfied that the opinions of the doctors have been reached after careful consideration having regard to the correct and relevant matters and are opinions reached in the proper exercise of their professional judgment as to what is in the best interests of their patient, then I very much doubt that a court would ever make an order of the kind sought here.” (at 92-93)