Supreme Court dismisses appeal where parents refuse PKU testing, upholding parental rights over state intervention.

THE SUPREME COURT

321/00

Keane CJ

Denham J

Murphy J

Murray J

Hardiman J

Between:

The North Western Health Board

Plaintiff/Appellant

AND

HW and CW

Defendants/Respondents

Judgment of Mr Justice Francis D Murphy delivered the 8th day of November, 2001

The history of this matter and the comprehensive arguments of Counsel are faithfully recorded in the judgment of the Chief Justice.

There is nothing which I could add to that judgment and nothing would be gained by repeating it. I will gladly adopt the recital of

facts provided by the Chief Justice and his careful analysis of the arguments.

The determination of the nature and extent of the rights and duties as between parents and their child has involved a number of

problems. The nature and extent of the obligations owed by the State to a child and the circumstances in which those obligations

arise create even greater difficulties. However it is the resolution of potential conflict between the duties of parents and the duties of

the State which causes the most delicate problems. In the present case may be explored from different aspects. First, there is the

medical or scientific area by reference to which the merits and defects (if any) of the PKU test maybe determined by reference to

objective scientific criteria. Secondly, there is the area of moral authority recognised by Articles 41 and 42 of the Constitution as

being vested in the Family and parents and identified as rights which are inalienable and imprescriptible. Thirdly, there is the area of

potential conflict between the duty of the Courts to vindicate the constitutional rights of individuals and the rights, duties and

interests of others in respect of these rights.

No problem arises in the medical or scientific area. The PKU test is used to diagnose with confidence the presence or absence of one

or more metabolic conditions any one of which may cause either mental handicap or life threatening illness. There is then the

comforting knowledge that these conditions, if discovered early in the life of the child, are susceptible to simple and effective

treatment. The carrying out of the test involves an invasive procedure for which the consent of parents is required. However, what

this procedure involves is, both metaphorically and literally, a pin prick. No evidence was produced and no suggestion made that there

is any medical or scientific view which envisages any possible danger to a patient from the PKU test. In my view it is beyond debate

that the performance of a PKU test, viewed in medical terms, is unquestionably in the best interests of the infant tested.

The moral issue is less clear. There are no provisions of the Constitution cognisable by the Courts expressly requiring or permitting the

State to provide medical services or social welfare of any kind for any of its citizens. In G .v. An Bord Uchtala [1980] IR 32 this Court,

in considering the principles applicable in granting an order authorising the Adoption Board to dispense with a mother’s consent to an

order of adoption under the Adoption Act, 1952, examined the nature and extent of the constitutional rights of the infant. At page 55

of the report under the heading “The Child's Rights” O’Higgins CJ said:-

“The child also has natural rights. Normally, these would be safe under the care and protection of its mother. Having

been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working

and of realising his or her full personality and dignity as a human being. These rights of the child (and others which I

have not enumerated) must equally be protected and vindicated by the State. In exceptional cases the State, under the

provisions of Article 42, s.5, of the Constitution, is given the duty, as guardian of the common good, to provide for a

child born into a family where the parents fail in their duty towards the child for physical or moral reasons.

In his judgment Walsh J made observations to the same effect (at page 67), namely:-

“It has already been decided by this Court in Nicolaou’s case that among the mother’s natural rights is the right to the

custody and care of her child. Rights also have their corresponding obligations or duties. The fact that a child is born out

of lawful wedlock is a natural fact. Such a child is just as entitled to be supported and reared by its parent or parents,

who are the ones responsible for its birth, as a child born in lawful wedlock. One of the duties as a parent or parents, be

they married or not, is to provide as best the parent or parents can the welfare of the child and to ward off dangers to

the health of the child. As was pointed out by this Court in Ryan .v. The Attorney General (at page 350), there is nothing

in the Constitution which recognises the right of a parent to refuse to allow the provision of measures designed to

secure the health of the child when the method of avoiding injury is one which is not fraught with danger to the child

and is within the procurement of the parent.”

Article 40, s.3 of the Constitution requires, in general terms, the State to respect, and, as far as practicable, by its laws to defend

and vindicate the personal rights of all citizens. However, the decision of this Court in The Adoption (No. 2) Bill 1987-1989 IR 656 by

establishing that Article 42, s.5 is of general application and not confined to Education (as the heading to the Article might suggest)

found that there is a duty on the State in certain circumstances to make good the failure of parents to fulfil the duties - moral or

constitutional - owing by them to their children. Article 42, s.5 provides as follows:-

“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State

as guardian of the common good, by appropriate means shall endeavour to supply the place of the parent but always

with due regard for the natural and imprescriptible rights of the child.”

The effect of that sub-article can be found in the decision of Geoghegan J - then a Judge of the High Court - in FN .v. The Minister

for Education & Ors [1995] 1 IR 409. In that case the applicant was a boy of 12 years of age whose mother was dead and his father

unknown. Despite their best endeavours his foster parents were unable to control him. It was clear on the medical evidence that the

applicant was in need of special treatment, attention and education and more particularly that this could not be effectively provided

save in a secure accommodation where he would be contained and detained. Mr Justice Geoghegan held that the applicant had the

right to the facilities which he required and the State the corresponding constitutional duty to provide them.

In the present case the issue is not whether the State is bound to make available the PKU test for any special category of children.

That service is already provided for all. The moral and constitutional dilemma is whether the parents having declined to avail of the

service the State, either because of its obligation to vindicate the personal rights of the child involved or its default obligations under

Article 42.5 is bound to ensure that the available service is indeed availed of. I am firmly of the view that it is not.

I confess that I would be impatient with the attitude of the Defendants/Respondents. I am alarmed by the real possibility (happily not

a probability) that the young boy may be a victim of one of the metabolic conditions which the PKU test could so easily detect and

that, because of the absence of detection and treatment, he could suffer appalling consequences. In that event at least the North

Western Health Board will have the comfort of knowing that they took every possible step to secure the welfare of the infant. The

only solace for myself and those Judges taking a view similar to mine would be that we interpreted the Constitution and the law to

the best of our fallible ability.

In England the Court of Appeal in Re T (a minor) [1997] 1 AER 906 was faced with the issue whether the Court should override the

refusal of a mother to provide her consent to a child undergoing a liver transplant operation which was essential to its continued

survival. Waite LJ, having pointed out that all cases depend on their own facts to such degree as to render generalisations

impracticable did go on to construct a scale one end of which he described as being “the clear case where parental opposition to

medical intervention is prompted by scruple or dogma of a kind that is patently irreconcilable with principles of child health and

welfare widely accepted by the generality of mankind”. He made it clear that in those circumstances “it is the duty of the judge to

allow the courts own opinion to prevail in the perceived paramount interests of the child concerned....”. In fact the Court of Appeal

refused to provide the consent sought having regard to the operations which the infant had previously undergone and the necessary

dependency of the infant on the support of its parents if the liver transplant operation were authorised. Another decision of the

Family Division of the High Court in England was cited in support of the appeal herein, namely, in Re C [1999] Fam Div 289. In that

case a local authority sought, in accordance with the legislation in that behalf, an order of the Court overriding the wishes of the

mother permitting a six months old baby to have a HIV test. The importance and urgency of the test was that the mother herself was

HIV positive and the baby had been breast fed. There was a factual similarity between that case and the present in as much as both

tests involved the extraction of a blood sample. Unhappily the relevant test for HIV, Polymerase Chain Reaction, (PCR) may not be

quite as accurate or reliable as the PKU test and, more particularly, the diagnosis does not guarantee effective treatment but merely

better “focused advice on the best course of action to take both while [the child] remains asymptomatic and if she develops the

symptoms of disease”. However the two factors which appeared to have weighed most heavily with the trial Judge was first, that

any intervention directed by the Court would require the active commitment on the part of the parents in the long term and,

secondly, that the parents who had researched intensely the problems of HIV were “far from lone voices in their dissent from

mainstream opinion”. Nevertheless Wilson J held that the performance of the PCR test was overwhelmingly in the best interest of the

child and that that was the appropriate criterion.

It appears to be clearly established in the United Kingdom that where a Court is called upon to make a decision (whether pursuant to

statute or their inherent jurisdiction) as to whether a minor should undergo surgery or any medical procedure “...the question for the

Court was whether it was in the best interests of the child that she should have the operation and not whether the wishes of the

parents should be respected” (see Re T (above) page 914). A similar authority is exercised in this jurisdiction where, but only where,

the applicant is a Ward of Court. In that event the prime and paramount consideration of the Court is the best interest of the ward

and, although the views of the committee and family of the ward are factors which may be taken into consideration, they cannot

prevail over the Court’s views as to what is in the best interests of the ward (see In the Matter of a Ward of Court (Withholding

Medical Treatment) No 2 [1996] 2 IR 79).

The position is different in the present case where the Court is invited, to exercise, not the jurisdiction conferred upon it by particular

legislation or in Wardship matters, but the power and duty of the State in a role which is clearly subsidiary to that of the parents. In

relation to the Education of their children the relationship between the State and the family is clearly and expressly dealt with in

Article 42. The corresponding rights and duties of the State in relation to matters of general medical welfare are unenumerated and ill

defined but the subsidiarity of the State to the parents is clearly established. Clearly it would be incorrect to suggest that the State

could or should intervene merely because by doing so it could advance significantly the material interests of a child. If such a crude

test were permitted then children of less well off parents might be given readily in fosterage to others who, it could be demonstrated,

had the capacity to advance the material and, even, moral welfare of the child.

The Thomistic philosophy - the influence of which on the Constitution has been so frequently recognised in the judgments and

writings of Mr Justice Walsh - confers an autonomy on parents which is clearly reflected in these express terms of the Constitution

which relegate the State to a subordinate and subsidiary role. The failure of the parental duty which would justify and compel

intervention by the State must be exceptional indeed. It is possible to envisage misbehaviour or other activity on the part of parents

which involves such a degree of neglect as to constitute abandonment of the child and all rights in respect of it. At the other

extreme, lies the particular decision, made in good faith which could have disastrous results. In the present case the parents did not

present a refusal to the proposed PKU test. Indeed they positively agreed to the test provided it could be carried out on hair or urine

samples. The objection of the parents centres exclusively upon the invasion or puncture - as they see it - of the blood cells of the

child. No reasoning based on any scientific view or any religious doctrine or practice was cited in support of this firmly stated

objection. Nevertheless I do not accept that a particular ill advised decision made by parents (whose care and devotion generally to

their child was not disputed) could be properly categorised as such a default by the parents of their moral and constitutional duty so

as to bring into operation the supportive role of the State.

If the State had an obligation in the present case to substitute its judgment for that of the parents numerous applications would be

made to the Courts to overrule decisions made by caring but misguided parents. Such a jurisprudence and particular decisions made

under it would tend to damage the long term interests of the child by eroding the interest and dedication of the parents in the

performance of their duties. In my view the subsidiary and supplemental powers of the State in relation to the welfare of children

arises only where either the general conduct or circumstances of the parents is such as to constitute a virtual abdication of their

responsibilities or alternatively the disastrous consequences of a particular parental decision are so immediate and inevitable as to

demand intervention and perhaps call into question either the basic competence or devotion of the parents.

In my view the present case is not one in which the Courts should entertain the application for consent. Accordingly I would dismiss

the appeal and affirm the judgment of the High Court.