Supreme Court: Hospital can withhold life-sustaining treatment for critically-injured boy against wishes of parents

Killian Flood BL

In an important judgment regarding health decisions and family authority, the court considered that the best interests of the child did not require the hospital to perform aggressive and invasive life-sustaining procedures because there was no realistic benefit to the boy except continued pain and suffering.

The court also made significant statements on the appropriateness of the wardship procedure to protect the child’s interests, children’s rights under Article 42A of the Constitution and euthanasia.

Background

The boy, known only as John, suffered catastrophic brain injuries in July 2020 in an accident. He was brought to the Hospital and admitted to the Paediatric Intensive Care Unit. As a result of his injuries, John required a feeding tube, intermittent suctioning of his lungs and catheters for medications and bodily excretions. It was not expected that he would ever walk, talk, develop any meaningful awareness of his surroundings, be able to communicate or process information, or be capable of performing any voluntary movement. The uncontested medical opinion was that John had suffered “devastating brain injuries” that were permanent and irreversible.

One of the effects of John’s condition was dystonia, which is the painful, prolonged and involuntary contraction of John’s muscles. Unfortunately, John’s dystonia was particularly severe in nature and was triggered by anything which caused him discomfort, including the delivery of medication or noise.

Initially, the Hospital failed to control John’s dystonia and diverged with the parents on the correct course of treatment. The Hospital felt that John was in extreme, persistent pain and that aggressive life-sustaining treatment was not in his best interests. In particular, the Hospital was concerned that the medication doses required to control John’s dystonia might terminate his ability to breath and he would require further treatment in the PICU. Further, John was very vulnerable to pneumonia or chest infections, which significantly increased the chances of multiple PICU stays.

The parents, particularly the mother, argued that John would want to fight for life at any cost and just needed more time. The parents refused to consent to medical treatment which may cause John to stop breathing. In this context, the Hospital brought an application to the High Court seeking orders to withhold certain life-sustaining treatments and to administer medication to John even if the secondary effect was that John’s respiratory system would fail.

The case was originally commenced in the High Court under the wardship procedure. The President of the High Court, Ms Justice Mary Irvine, made John a ward of court and granted the reliefs sought by the Hospital. Subsequently, the parents appealed the decision to the Supreme Court in a leapfrog appeal, with all procedural, evidential and substantive aspects of the case in issue.

Supreme Court

In a comprehensive judgment, the Supreme Court considered several distinct submissions made by the parties, including the appropriateness of the warship procedure, whether the withholding of treatment amounted to euthanasia, the proper legal test under Article 42A and the best interests of the child. The 104- page judgment was co-authored by Mr Justice Donal O’Donnell, Ms Justice Elizabeth Dunne, Ms Justice Iseult O’Malley and Ms Justice Marie Baker.

Wardship

The parents had argued that it was not appropriate to use the wardship jurisdiction to make orders relating to John’s treatment and claimed that plenary proceedings were the proper procedural action. The Court rejected this, stating that the wardship process was no less appropriate than plenary proceedings seeking declarations. The development of the laws in Ireland and England showed that a flexible jurisdiction such as wardship was “unavoidable and necessary.” Plenary proceedings were no more secure or immune from challenge than the wardship process. Further, the wardship process was advantageous because it allowed for inter alia regular and informal review and the appointment of a guardian ad litem.

However, the court accepted it was generally not desirable for wardship to usurp the entire decision-making function of the parents in single-issue cases. Despite this finding, the court ruled that the wardship was sufficiently flexible to only encroach minimally on John’s life.

Euthanasia

The parents also contended that the orders sought by the Hospital in the case were constitutionally impermissible because they amounted to an acceleration of death and/or euthanasia. The Court rejected this submission, noting that the doctors were advocating for a move to palliative treatment rather than a deliberate act to end John’s life. The distinction was important in the context of end-of-life cases. The submission was also out of step with Re a Ward of Court (No. 2) [1996] 2 I.R. 79 in which death was recognised as the natural and desired outcome of the application.

Article 42A and family decisions on health treatment

The court then turned to what it described as the central issue in the case, namely; whether the conscientious decisions of parents regarding treatment can be overridden when the consequence may be the potential death of their child. The court noted that Article 42A of the Constitution allowed the State to intervene if the parents failed in their duty to the child to the extent that the welfare of the child was prejudicially affected. However, the court also stated that Article 42A cannot be considered in isolation from the rights of the family under Articles 41 and 42 and family decision-making was an area for which the Constitution required respect and protection.

Critically, the court determined that, contrary to pre-Article 42A case law, the blameworthiness of the parents was no longer an essential feature of “parental failure” for State intervention, and that this failure need not amount to a complete abandonment of the parental role. The best interests of the child were the paramount consideration.

To establish parental failure in medical cases, a court should consider the nature and significance of the procedure involved, the extent to which the opinion of treating doctors is unanimous, is shared by independent experts, and the depth and conviction with which it is held, the court ruled.

In the present case, the court said that a primary consideration was the question of medical consensus as to treatment, but a court must also give full value to the genuine response of the family regarding that treatment. This was because the medical treatment of the chid was not a decision in which the parent was the primary constitutional decision-maker, unlike in other matters such as education and religion. The parents’ consent to medical treatment was not solely an issue of family authority but rather an exercise in vindicating the rights of the child. The court acknowledged that court approval is prudent in disputed cases between parents and doctors.

Decision and conclusion

The court said the primary legal issue in the case was whether it was lawful for the Hospital to withhold medical treatment rather than whether the parents consented to same. The Hospital did not require the consent of the parents to withhold treatment but did require consent to administer the dystonia medicine which may have stopped John from breathing.

In light of the medical evidence in the case and giving weight to the parent’s position, the court reluctantly concluded that the refusal to assent to pain-relieving treatment for a dystonic episode was a failure of duty by the parents. Having regard to the pain and suffering which John was experiencing, it was in his best interests to receive the medicine if he had a further episode.

The court agreed that the orders regarding John’s treatment could be made on a contingent basis. The court ordered that the Hospital could administer such medications as might be necessary to stop dystonic episodes even if it resulted in the termination of John’s respiratory system. The court declined to approve the other orders from the High Court regarding John’s treatment because there was no indication that these treatments were in issue or that the parents would not consent to them. As such, the High Court decision was affirmed and the appeal was dismissed.