High Court: Hospital directed to proceed with intensive chemotherapy for a five-year-old boy with cancer

The president of the High Court, Mr Justice Peter Kelly, has determined that a hospital can proceed with intensive curative intent treatment recommended by the consultant oncologist in charge of treating a five-year-old boy with very high-risk neuroblastoma.

Describing the case as “harrowing”, Mr Justice Kelly said that immediately continuing with the treatment provided the only realistic possibility of cure and that the boy’s father was incorrect in his view that further chemotherapy would provide no benefit.

Diagnosis and initial response to treatment 

In October 2018, five-year-old AC was diagnosed with neuroblastoma, described as “a paediatric cancer of the sympathetic nervous system namely the network of nerves that carry messages from the brain to the rest of the body”. He had an “inadequate response to induction chemotherapy” carried out in late 2018, and thereafter his diagnosis was reclassified as very high-risk neuroblastoma. 

The consultant oncologist in charge of the boy’s care proposed curative-intent treatment, which involves high dose chemotherapy and stem cell rescue. Due to the inadequate initial response to treatment, the oncologist has proposed to “further intensify the treatment with a tandem rather than a single high dose chemotherapy treatment”. 

Describing the case as “harrowing”, Mr Justice Kelly said the application arose in circumstances where the boy’s parents disagreed on whether curative intent treatment should be provided. 

Dispute on further treatment 

The mother supported the recommendations of the consultant oncologist, believing that this should commence as soon as possible to enhance her son’s chance of survival. Mr Justice Kelly said that the mother was “under no illusions about… the poor prognosis even with curative treatment”, but that she believed it was worthwhile.

The boy’s father “was very firm in his view that he does not want curative intent treatment or at least does not want it to start until after Christmas this year”. The Court heard that he had promised his son that he would not subject him to further chemotherapy, and wished for his son to enjoy what may be his last Christmas without having to go through treatment. 

The treating oncologist said that deferring treatment until 2020 would “be with palliative intent” due to the “risk of the tumour becoming active again and being extremely difficult to control”. Furthermore, the curative treatment is already “two months behind the recommended time” because of trying to persuade the parents to reach a consensus. 

The Court also had regard to a report prepared by a consultant child psychologist who met the boy. The boy said he did not want any more chemo and thought that “the cancer might get better on its own”. He understood that his father “says no to chemo” and that the doctors and his mother think that “chemo is going to work, but it isn’t”. The boy said he had been taking CBD oil daily, and preferred this to returning to the hospital. The psychologist said the boy’s main wishes were “to avoid sickness and discomfort and to continue with his normal life of attending school and playing”, and that he was “influenced by his understanding that refusing further chemotherapy or having treatment with CBD oil instead, which he sees as an alternative, will not have negative consequences for his ability to pursue a normal life”.

High Court 

Without any consensus reached between the parents, the boy was taken into wardship, and the hospital commenced the present proceedings. Mr Justice Kelly said it was “difficult to imagine a more onerous question for a court to address”, but was satisfied that it was in the boy’s best interests that curative intent treatment should be proceeded with. 

Mr Justice Kelly said there was “a strong legal presumption in favour of taking all steps to preserve life”. He said this was “not irrebuttable”, but that this case involved a unanimous view from medical experts that curative intent treatment should proceed and there was no medical evidence to suggest otherwise. Furthermore, the curative-intent treatment suggested is in accordance with well-established protocols at an international level – “[i]t is mainstream treatment and not experimental” and provides “a realistic possibility of cure”.

Describing the mother’s support of curative-intent treatment starting immediately as “balanced and rational”, Mr Justice Kelly said the mother understood the importance of her son “having an enjoyable Christmas but not at the price of losing future Christmases”. 

Mr Justice Kelly sympathised with the father but said he was “more affected by emotion and sentiment than by reason”. He said the father’s belief in CBD oil was not based on any medical evidence of it having a curative effect on neuroblastoma, and that the father was incorrect in his view of further chemotherapy having no benefit. 

Considering the boy’s views, Mr Justice Kelly said he was influenced by his father’s approach to “no more chemo”, and that he did not have the “maturity or insight to understand his position”. 

Determining that the boy should “proceed to have the curative-intent treatment as recommended by the consultant oncologist and that it should commence as soon as possible so as to minimise the risks of the tumour becoming active again”, Mr Justice Kelly said he hoped that with treatment, this would “not be his last Christmas but that he will proceed to have others to enjoy in years to come”.

© Irish Legal News Ltd 2021

Other judgments by Mr Justice Peter Kelly