Parents' agony over son they loved to death

The boy blamed rugby for his sore knee. The pain was the start of an ordeal that led to his death - and put his parents in court. NAOMI LARKIN reports.


Tovia Laufau was a typical 13-year-old teenager - until March last year.

He played video games, watched a lot of television and hung out with his mates and siblings. He loved rugby.

A third former at Tamaki College in Glen Innes, Auckland, Tovia was described yesterday by principal David Hodge as "a delightful boy" who came from a loving, caring family.

"He was a lovely kid. Like all the kids in that family - really delightful young people."

Similar praise came from Russell Burt, principal of nearby Point England Primary, where Tovia went to school between the ages of 5 and 11.

"He loved rugby and represented our school for three years.

"He was a good, solid player. He took the hits and gave the hits.

"Tovia was a nice boy, outgoing, cheeky sometimes and with a happy disposition. A good friend to his friends."

Tovia's parents, Peni and Faafetai Laufau, both Seventh Day Adventists, were devoted to their children and doted on their son, describing him as "a very special young man. Gifted."

It was this devotion which killed him.

In the High Court at Auckland on Wednesday night, Mr and Mrs Laufau were found not guilty of manslaughter but guilty of the alternate charge of failing to provide their son with the necessaries of life.

The charge, which came after Tovia's death last September from untreated bone cancer, has a maximum sentence of seven years in jail.

They will be sentenced in October.

When ambulance officers were called to the family home last September, they were confronted by an unpleasant odour that was found to be coming from the 15kg, basketball-sized tumour on Tovia's leg.

The teenager was dead, lying on a plastic sheet being used to catch the discharge oozing from his tumour.

The Laufaus were devout Christians who believed God was watching over their family.

They constantly prayed, with members from their church, for Tovia to be healed. But their religion did not bar them from seeking medical help.

The case - which all involved agree was a tragedy - proved to be a legal milestone and provoked criticism of the health system, particularly the provisions for care of adolescents.

Tovia's troubles started late in May 1998, when he began complaining of a sore leg. His mother took time off her job as a machinist to take her son across town from the family home in Mangere to their family doctor in Kingsland.

Dr Peter King initially diagnosed a mild, superficial infection.

The only external symptom was a small scab, and Tovia was given antibiotics.

By January last year, the same left knee was still causing trouble. Tovia was walking with a limp, which he and his parents blamed on an incident during a game of rugby when another boy fell on him.

Another visit was made to Dr King, followed by four more to his locum. Tovia's mother accompanied him each time, often taking time off work.

The knee showed no improvement, and in February, Dr King referred Tovia to a specialist, who sent him to Middlemore Hospital on March 15.

His mother took leave to stay with him, sleeping by his bed throughout the 10 days of tests that followed. His father and siblings visited regularly.

From this point, things moved quickly. Hospital scans showed a growth at the lower end of the thighbone. Then a biopsy revealed the worst.

Tovia had osteosarcoma, a form of bone cancer, which had spread into the muscles and other tissue around the left thigh bone.

Middlemore Hospital oncologist Dr Gary French said he told the Laufaus after the initial diagnosis that the teenager would die without chemotherapy and surgery.

"I mentioned that this tumour left untreated was fatal and could spread through the rest of Tovia's body and kill him," he said.

A re-examination of the hospital scans found minor lesions of an "indeterminate nature" on his left lung, which pathologist Timothy Koelmeyer later said were "almost certainly" an indication that the cancer had spread to the lung.

At the autopsy, it was found the left lung had been "virtually replaced" by a tumour. What was left of the lung, Dr Koelmeyer said, weighed 1.043g; in a 13-year-old it should have weighed 250g.

Mrs Laufau said that, during the tests, Tovia was frightened and crying. Dr French referred Tovia to Starship hospital and the family went home.

On March 29, the Laufaus and Tovia went to Starship. Specialist paediatric oncologist Dr David Mauger explained that the cancer was spreading into the muscles and other tissues surrounding the bone. He recommended a course of chemotherapy followed by a small operation.

This was Tovia's last medical visit.

That night, Mrs Laufau said, "I asked Tovia to go back to the hospital if he wanted to live longer and be with us.

"He said that if he went to the hospital he would die straight away and he would never, ever forgive us."

Asked in court what she thought would happen if Tovia did not go back to hospital, Mrs Laufau said: "I thought he might do something like commit suicide if he went back because of how he said he would die straight away if he went back.

"Peni and I decided to do what Tovia wanted to do. We asked him to go back to hospital but he kept saying no."

The Laufaus said they believed their son was a "mature person."

The issue of maturity - Tovia's ability to make an informed decision about his health - became the heart of the legal debate that followed his death.

The case was unique because the issue of informed consent involved a 13-year-old boy making a life or death decision.

Crown prosecutor Mark Woolford said informed consent was made up principally of competence or capacity, and information or knowledge.

Tovia lacked the competence, because at 13 years he did not have the ability to make reasoned decisions - to think in the abstract, not just in concrete terms, Mr Woolford said.

Neither did he have enough information about his diagnosis, prognosis or the side-effects of the treatment. This was clear when he told an uncle that the hospital would remove his leg and he would still die.

Defence counsel Frank Hogan said Tovia's choice not to have treatment was an "informed choice," and age should not be the yardstick for measuring maturity.

Birthdates used as a gauge of maturity appeared to be randomly selected.

For instance, Mr Hogan said, children could be charged with murder or manslaughter at 10 years of age. They could buy a Lotto ticket at any age, yet had to be 16 to buy an Instant Kiwi ticket.

"A person has to be aged 25 before his parents' income no longer has to be means tested for a student allowance," Mr Hogan said. "If he was flying Ansett New Zealand, he'd be paying full adult fare from age 12."

By respecting Tovia's decision, the parents acted with "lawful excuse," he said.

The Laufaus were charged under Section 152 of the Crimes Act.

This specifies that parents or guardians have a "legal duty" to provide the necessaries of life for any child under the age of 16. They are criminally responsible if they omit to provide these without lawful excuse and the omission causes death, endangers the child's life or permanently damages his or her health.

Mr Hogan said it was unfair that the parents were charged while Starship hospital staff were aware what would happen if the boy was untreated. The hospital had other options, such as obtaining a court order forcing the Laufaus to seek treatment.

Starship's oncology charge nurse manager, Vicki Dolphin, said the hospital had gone to court in the past to get guardianship orders but admitted that in Tovia's case it was influenced by the bad publicity surrounding the Liam Williams-Holloway case.

Brendan Holloway and Trena Williams took their son, Liam, into hiding in January last year to avoid "harsh" chemotherapy and Healthcare Otago officials had gone to court to get treatment resumed.

But the strongest criticism came from Dr Peter Watson, a specialist adolescent physician from the Centre for Youth Health in South Auckland.

He said the hospital had a moral, ethical and legal duty to provide care. If it failed to gain the trust and agreement of the family, it had an obligation to go further afield.

"This young man and other young people before him and in the future, I believe have and will suffer - not only suffer but also die - from the failure of the health system to recognise the unique needs of young people in our hospitals and provide appropriate services for them.

"It is also a tragedy for this family, and I would hope no other family ever has to be put through this experience when there is such an evident failure of the health system."