The Director of Social Welfare v. Law Kwok Wah and Another

HCMP001148A/1987

1987 No. 1148

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: The Hon. Mr. Justice Mayo in Chambers

Date of Hearing: 21st October 1987

Date of Delivery of Judgment: 21st October 1987

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JUDGMENT

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1. This is an application made by the Director of Social Welfare under the Guardianship of Minors Ordinance, Cap. 13. It relates to a child, LAM Wai-kwan now aged nearly eight who was seriously injured in a traffic accident in November 1983. Amongst the injuries sustained was a head injury and the broken leg.

2. As a result of the head injury, Wai Kwan has a large skull defect, measuring 9 cm x 6 cm. The doctors who are concerned with the case are unanimously of the opinion that a surgical procedure known as a cranio-plasty should be performed on Wai Kwan so this condition can be alleviated.

3. Put in very simple terms, a plastic cover would be attached to Wai Kwan's skull with the object of protecting his brain from accidental injury. The Defendants in these proceedings are Wai Kwan's parents. Obviously before such an operation can be undertaken, it is necessary to obtain the permission of the child's parents to the operation being performed.

4. Mr. and Mrs. Lam have steadfastly declined to give such permission. Mr. Lam is represented by Mr. De Boinville. Mr. Lam himself has not given evidence before me. In so far as I can ascertain, he has only put forward rather vague and unconvincing reasons as to why the operation should not be performed.

5. Mrs. Lam who is apparently rather dominated by Mr. Lam, has not seen fit to put forward objections herself but I think that she does support Mr. Lam in his position. It would appear, Mr. Lam considers that an operation would not be a good idea from a religious point of view. The family practice the Buddhist religion. There was, however, no opportunity for Mr. De Boinville to develop the theme in the absence of satisfactory evidence.

6. This case has caused a lot of concern in the Social Welfare Department. Mr. Alfred Choi and two case workers appeared and gave evidence before me. Mr. Choi said that he and Mrs. Elizabeth Wong and the case worker all attended at the Lam family residence with the purpose of attempting to get Mr. and Mrs. Lam to change their minds and agree to the necessary operation being performed.

7. According to Mr. Choi, the Social Welfare Department was concerned that the Lams should be afforded every opportunity of putting forward any valid objections to the proposal. They did not wish that any impression should be gained from anyone that the views and opinions of the Lams would be overborne by the Government machine without having due regard to the sensitivities of the parties concerned.

8. I can well understand and sympathize with these feelings. Mr. Choi and Mrs. Wong attempted to find out the reasons for the Lam's refusual to give permission. Mr. Lam referred to the religious objection I have described. He also appears not to have any great faith in western medicine.

9. There is no doubt in my mind that the paramount consideration I must bear in mind is the interest of Wai Kwan. Dr. Shroff and Dr. Lee who are both experienced Neurosurgeons gave evidence. They both described the risks such as they are and the benefits which would accrue if the operation is successful. The main reason for the operation is to protect Wai Kwan from the risk of having an accident whereby some object may come into contact with his skull. If this happened in the area of the defect and the operation has not been performed, the consequences could and very likely would be most severe. Injury would very likely be occasioned to his brain.

10. Having regard to the very small risks which are attendant upon the operation being performed, I have no hesitation in accepting the evidence of both these doctors that the benefits of the proposed operation far out weigh any risks which maybe inherent in the situation.

11. Over and above this, I do not think that Wai Kwan's parents have put forward any valid objections to the operation being performed. I have decided that it is right that I should order that the operation which is contemplated should be performed and I make an order to this effect. I also make an order that Wai Kwan must receive any consequential medical treatment which may be necessary and he should remain in hospital for the necessary period for this. I will hear the parties as to the framing of the order and costs.

Representation:

Mr. W.R. Marshall & Mrs. A. Cabrelle & Mr. P. Cheung (Attorney General's Chambers) for Plaintiff/Applicant

Mr. Nigel De Boinville (Deacons) assigned by D.L.A. for 1st Defendant

2nd Defendant absent