HA v Patient Review Panel

HA v Patient Review Panel - [2013] VCAT 1628 - VCAT 2013 case summary — Zoe

[6]

In February 2008, Ms HA was diagnosed with an aggressive form of breast cancer. She underwent surgery, and required chemotherapy. Before commencing chemotherapy, Ms HA and Mr HB signed a 'Consent to Operative Treatment for IVF and Related Procedures' and a 'Principal IVF Consent Form'.
On 5 April 2008, the embryos were formed from the gametes of Ms HA and Mr HB. The embryos were permitted to be stored until 5 April 2013 under s 52(4)(b)(i) of the Infertility Treatment Act 1958 (Vic), and subsequently under s 33(2)(b)(i) of the ART Act.[2]
In March 2010, Mr HB commenced working overseas. Contact between Ms HA and Mr HB became sporadic. On 1 August 2010, Ms HA ceased her cancer medication in preparation for IVF. On 2 September 2010, Mr HB advised Ms HA that he no longer wished to continue their relationship. Ms HA advised Mr HB that she wished to use the embryos for IVF.
On 4 November 2010, Ms HA and Mr HB attended a counselling session with an IVF counsellor. The counsellor advised that, before Ms HA could use the embryos for IVF, Mr HB would need to consent to their use. Ms HA asked Mr HB to advise of his position as to the embryos. Mr HB did not advise of his position. On 6 December 2010, Ms HA met with Mr HB to discuss her desire to use the embryos for IVF. Again, Mr HB did not advise Ms HA of his position.
Ms HA has sent numerous emails to Mr HB. Mr HB last responded to an email on 16 September 2010. There have been two subsequent emails from Ms HA to Mr HB on 29 January 2011 and 12 April 2011. Neither has attracted any response. On 6 May 2011, Ms HA's then solicitors wrote to Mr HB concerning Ms HA's desire to use the embryos for IVF. There was no response.
On 22 January 2013, Melbourne IVF wrote to Ms HA advising that the 5-year storage period for the embryos would expire on 5 April 2013.
On 26 February 2013, Ms HA applied to the Panel for an extension of the period of storage of the embryos until 5 April 2018. The hearing before the Panel commenced on 14 March 2013. The Panel published its decision on 27 March 2013.
On 22 April 2013, Ms HA applied to the Tribunal for review of the Panel's decision. On 7 May 2013, the Tribunal directed that it would post copies of the Tribunal's orders, the application for review, and the Panel's decision to Mr HB. The Tribunal also ordered that Mr HB may, if he chose, file any application to be joined as a party to this proceeding by 31 May 2013. No application by Mr HB to be joined as a party was received by the Tribunal.
On or about 20 June 2013, an officer of the Panel received a telephone call from Mr HB. Mr HB advised that he had arrived in Australia, and had just received the correspondence from the Tribunal. On 24 June 2013, an associate of the Panel met with Mr HB. She explained the background to the proceeding, and suggested that Mr HB obtain his own legal advice. There has been no further contact with Mr HB.
Since 2009, Ms HA has paid, and continues to pay, the fees for the storage of the embryos.

[90]

Ms HA is a primary school teacher, and has been at her current school for the past eight years. She was at a previous school for 17 years, and has graduate diplomas in education and special education. She is now 46 years old, and lives by herself.
She met Mr HB in 2004, and commenced living with him in 2005 or 2006. Ms HA and Mr HB sought to conceive a child from early 2007, and sought medical advice in relation to fertility in around mid-2007. In early February 2008, Ms HA and Mr HB commenced preparation for IVF treatment.
Unfortunately, Ms HA was diagnosed with an aggressive form of breast cancer, and required surgery to remove the breast cancer followed by an 18 week course of chemotherapy. She underwent urgent surgery on 22 February 2008.
Following medical advice, and a number of counselling sessions, Ms HA and Mr HB decided to form embryos using Ms HA's eggs and Mr HB's gametes. On 5 April 2008, a total of 10 embryos were formed.
From April to August 2008, Ms HA underwent chemotherapy. Subsequently, she was treated with cancer medication. In July 2010, she obtained positive results to tests. It was then possible to stop use of cancer medication and to commence preparation for IVF treatment.
Mr HB commenced working overseas in March 2010. The relationship between Ms HA and Mr HB continued but contact was sporadic. The relationship was strained by August 2010.
In its decision, the Panel appears principally to be concerned about two matters viz:
- (a) Mr HB had not given his consent to the extension of the period of storage; and
- (b) at the time of its decision, Mr HB had not been informed of Ms HA's application and the Panel was concerned that he should be afforded natural justice.
As to the first concern, the Panel has the statutory power under s 33(2)(b)(iii) and (3) to approve a longer period of storage if it considers that there are reasonable grounds for doing so in the particular case. This is a very different situation from that in AB v The Attorney-General for the State of Victoria,[23] where the operative provisions required the actual consent of the applicant's deceased husband from whom the sperm was taken. As he was deceased, and had not given his consent before he died, that consent could not be obtained, or the legislative requirement satisfied.
As to the second concern, Mr HB has now been informed of the existence of the proceeding and been given the opportunity to become a party. He has been advised to seek legal assistance. He has elected not to become involved. All requirements of natural justice and procedural fairness have been satisfied.
The Tribunal is of the view that there are reasonable grounds for an extension of the period for storage. We are of this view for the following reasons.
- (a) Ms HA is 46. She understands that she is unable to conceive naturally. She has been informed by her doctors that she will not be able to have further eggs harvested due to the risk that such a procedure would pose to her health.
- (b) Ms HA has been advised that she is unlikely to be able to conceive a child naturally due to the chemotherapy treatment she has undergone.
- (c) As Ms HA is over 35 years of age, she is not eligible to be granted donor embryos.
- (d) Ms HA was unable to pursue IVF treatment during much of the initial 5-year storage period because she was receiving chemotherapy and medical treatment at the time. She has been deprived of the benefit of much of the initial storage period during which she might have pursued treatment using the embryos.
- (e) The embryos effectively represent Ms HA's last chance to parent a child. The evidence suggests that she would be a loving and caring mother, and would be supported by her family.
- (f) An extension of time is consistent with the guiding principles.
- (g) Mr HB gave consent to the treatment undertaken in 2008. An extension of time for storage would give him an extended opportunity to consider whether he will consent to the use by Ms HA of the embryos.
- (h) An extension of time for storage would give Ms HA and Mr HB another opportunity to consider and resolve any issues as to the use and future of the embryos, and as to the responsibilities that would be assumed by Ms HA were a treatment procedure using the embryos successful, and a child conceived.
- (i) There is no evidence of any medical risk as a result of storing the embryos for a further period of 5 years.
- (j) Mr HB has had the opportunity to become a party to the proceeding before the Tribunal. He is aware of the proceeding and has met with an Associate to the Panel who explained the background to the proceeding and suggested that he should obtain his own legal advice. He has also received emails from Ms HA, and legal advisers.
- (k) No party appeared before the Tribunal to oppose the application for an extension of time for storage of the embryos.
- (l) Further storage of the embryos for a period of 5 years will not have a negative impact on any party or person.

At a glance

Court

Decision date

Before

Source

Judgment (109 paragraphs)

HA v Patient Review Panel (Human Rights List) [2013] VCAT 1628 (27 September 2013)

Parties

Legislation Cited (7)

Cases Cited (7)