Supreme Court dismisses appeal; parents' consent required for child's minimally invasive medical test.

[2001] IESC 90

THE SUPREME COURT

321/00

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

Between:

THE NORTH WESTERN HEALTH BOARD

Plaintiff/Appellant

and

H.W. and C.W.

Defendants/Respondents

JUDGMENT delivered by Hardiman J. on the 8th day of November, 2001.

1. This is an appeal from the judgment and order of the High Court (McCracken J.) whereby he refused the Plaintiffs the relief they

sought.

2. The case raises the question of whether a court can or should order that a child undergo a minimally invasive medical test despite

the strong objection of his parents. As the learned Chief Justice has said, this question in turn raises issues of great significance,

transcending the facts of the present case. The minimally invasive test, the PKU test, is, I am satisfied, a diagnostic test fairly

capable of description as a medical examination or assessment. It is invasive in a degree which, though slight, would render its being

carried out without consent or other lawful authority an assault. There could be no question under the law as it stands of an

examination or assessment of this sort being carried out on an adult of sound mind without his or her consent. It is, at present, the

invariable practice to seek the consent of the parents of the infants on whom the PKU test is carried out for their consent. This has

been the practice for some thirty-five years. In these proceedings, however, the Health Board has taken up the position that this

request for consent is a mere empty formula since the parents have no right to refuse to consent, and if they do so their decision in

this regard can be overridden by the High Court.

3. If the Appellant Health Board is correct to this contention it will have established an entirely novel proposition and brought about a

position in which a public authority can compel parents to subject a child to an invasive medical test It will thus be seen that the

case raises issues of principle of a far reaching kind.

Facts and proceedings.

4. I gratefully adopt the thorough statement of the facts of this case contained in the judgment of the learned Chief Justice. I wish

to emphasise certain aspects of the background to the case and of the proceedings themselves which seem to me to be of particular

importance.

5. Firstly, the Appellant Health Board does not dispute that the Respondents are careful and responsible parents. This is of particular

importance having regard to the terms of Article 40.3 (i) and (ii) and Article 42.5 of the Constitution. Moreover, Counsel for the

Appellant Health Board stated in submissions that his client had “no complaint of any sort about these parents and no dispute at all

with them”.

6. Secondly, though there is unanimity of medical opinion as to the desirability of the PKU test, no medical or other expert evidence

was adduced to support the proposition that the test should be compulsory. Furthermore, the evidence established that the test is

available on a very widespread basis in the United States, the United Kingdom and in Europe. It is not compulsory in any jurisdiction.

No proceedings to enforce the test on the child of objecting parents have been taken in any country.

7. Thirdly, the background to and the motivation for the institution of these novel proceedings is significant. In paragraph 8 of the

Affidavit of Dr. Eileen Naughton, sworn on behalf of the Appellants, she says:-

“The heel prick test is not mandatory in Ireland, but has always been advised as part of good medical care for all new born

infants. I am informed by the Department of Health and believe that approximately six couples have to date refused to allow

their children to have the heel prick test each year in Ireland, and up until the recent Child Care Act, it was recommended

that a couple would sign a statement to the effect that they took full responsibility for whatever mental handicap or ill effects

might ensue if they did not allow their child to be screened. The introduction of the new Child Care Act, I am advised and

believe, may impose a different onus on Health providers and carers”. (Emphasis added)

8. At paragraph 4 of the Affidavit of Dr. Caroline Mason, also sworn on behalf of the Appellants, she says:-

“As more fully explained below, this is not the first occasion of which the Plaintiff has found itself faced with parents who

refused to consent to this test, and the Plaintiff is extremely anxious to secure a determination from this Court as to what its

obligations and responsibilities lie (sic) where such consent is not forthcoming”.

9. At paragraph 16 of the same Affidavit the Deponent says:-

“....... The issues which are raised by the instant application are of the greatest importance to the Plaintiff both in terms of the

discharge of its statutory functions viz a vis the child of the Defendants, and in relation to other similar cases”.

10. Furthermore, Counsel for the Health Board on the hearing of this appeal stated that his clients were concerned that they might be

exposed to liability if they did not seek to administer the test on a mandatory basis.

11. Fourthly, the evidence establishes that the test has been available in Ireland since 1966, shortly after its development in the

United States. Until the institution of certain District Court proceedings, described below, by the present Appellant in 1997 or 1998,

no attempt was made by any Health Board or public authority to administer the test on a compulsory basis. No other test or

prophylaxis for general use has been sought to be administered on this basis.

12. In 1990 the then Minister for Health established a working group on metabolic disorders to make recommendations in relation to

the PKU test. Public Health professionals were dominant on this group. In relation to parents who declined the test they recommended

as follows:-

“1.5 Responsibility of parents.

In the case of parents who refuse to allow their infant to be screened, the responsibility for the possible adverse consequences

of their decision shifts to them.

The parents should be requested to signify their refusal in writing”.

(Emphasis in original)

13. Fifthly, at the hearing the Appellant Health Board expressly disavowed reliance on any statutory power to enforce the PKU test,

resting their case solely on the Constitution. Yet it clearly emerges from the Plaintiffs principal Affidavit that the Health Board’s shift

from a permissive to a coercive policy was rooted, not in any constitutional theory, but on a reading of the Child Care Act 1991. The

Board does not now rely on this statute in this connection. It appears that the Act of 1991 is relied on as conferring a specific locus

standi on the Health Board, but not for any other purpose. While there was some discussion of the hearing of the appeal of the

parens patriae jurisdiction, Mr. Paul Gallagher S.C. in his reply for the Health Board expressly confined the basis of his case to the

Constitution.

14. Sixthly, the Appellant Health Board has previously sought, successfully in at least one case, to administer the PKU test against

the will of parents by making an application to the District Court under Section 18 of the Child Care Act, 1991. The text of the section

is set out in the judgment of the learned Chief Justice. The section allows the District Court to make an order referred to as a “Care

Order” which commits the child to the care of the Health Board for as long as he remains a child or for such period as the Court may

determine. If such an order is made then, during its validity, the Health Board is entitled to consent “to any necessary medical or

psychiatric examination, treatment or assessment with respect to the child”. It is further provided that such consent is sufficient

authority for the carrying out of the examination or assessment in question. In the cases which the Health Board took in connection

with the administration of the PKU test, they sought the Care Order only for an extremely short period of time to allow the test to be

carried out.

15. After the Health Board had successfully obtained at least two such orders in the District Court, a couple other than the

Respondents in the present case appealed the order made in respect of their child to the Circuit Court (His Honour Judge Deery).

Their appeal was successful. On the hearing of this Court, Counsel for the Health Board conceded that the Section 18 procedure was

inappropriate where the Board had “no complaint” against the parents.

16. I believe this was an appropriate concession and that the learned Circuit Judge was correct in his refusal of a Care Order for the

purpose sought. In my view it is quite inappropriate to seek to invoke a District Court procedure, plainly envisaged for quite different

circumstances, to enforce the PKU or a similar test, when the only jurisdiction claimed to do so is one deriving from a previously

untested legal or constitutional theory.

The varying reliefs claimed.

17. Shortly after the Health Board were unsuccessful in the appeal before Judge Deery, they were confronted with the same problem

again after the birth, at home, of a further child to the present Respondents. These proceedings were instituted when the

Respondents refused to make the child available for the PKU test, as described in the Affidavits filed on behalf of both parties.

18. In the Statement of Claim filed by the Plaintiffs, they claimed the following relief:-

“(i) A declaration that it is in the best interest of (the infant) that a PKU test be carried out on him.

(ii) A declaration that the refusal of the Defendants to consent to the carrying out of a PKU test on (the infant) is a failure by

them to vindicate the personal rights (the infant).

(iii) A declaration that the Plaintiff be permitted to carry out the PKU test on (the infant) subject to such conditions as might be

directed, and notwithstanding the refusal of his parents, the Defendants herein, to consent thereto.

(iv) An injunction (and if necessary an interlocutory injunction) restraining the Defendants their servants or agents from

impeding the execution by the Plaintiff of the aforesaid PKU test.

(v) A mandatory injunction (and if necessary a mandatory interlocutory injunction) requiring the Defendants to furnish their

consent to the execution of the aforesaid PKU test on the said (infant).

(vi) Such further or other relief as to the Court shall seem meet”.

19. On the 10th July 2000 the Plaintiff issued a Notice of Motion for interlocutory relief. In this Motion the only substantive reliefs

claimed were:-

“(1) An Interlocutory Order permitting the Plaintiff to carry out the PKU test on (the infant), subject to such conditions as might

be directed, and notwithstanding the refusal of his parents, the Defendants herein, to consent thereto.

(2) An Interlocutory Order restraining the Defendants their servants or agents from impeding the carrying out by on or behalf of

the Plaintiff of the aforesaid PKU test”.

20. The hearing in the High Court seems to have proceeded on the basis of the reliefs claimed in the Notice of Motion. However, on

the hearing of this appeal, Counsel on behalf of the Health Board in the course of his reply stated that his clients were not now

seeking any but declaratory relief i.e. the reliefs claimed in paragraphs (i) and (ii) of the prayer in the Statement of Claim.

Observations on the above.

21. It appears to me that the following observations can fairly be made on the basis of the undisputed evidence:-

(1) The PKU test was available in Ireland for a period of over thirty years during which it was refused in each year by a small

number of parents. During the whole of this period no thought of a constitutional power to enforce the test on the children of

unwilling parents occurred to any public authority.

(2) On the evidence of Dr. Naughton, it was the coming into effect of the 1991 Act which led the Health Board to think that

their obligations in relation to the test had changed, or may have done so. But the Health Board’s case against the parents in

the present case is not advanced on the basis of any provision of the Act.

(3) The Health Board seeks a determination of its rights and obligations in relation to the Respondent’s child “and other similar

cases”. The case is therefore taken by the Health Board as a test case intended to yield a result of general application.

(4) Although the PKU test is well known world-wide and widely available in all First World Countries as well as elsewhere, this is

the first attempt anywhere to carry out this diagnostic test compulsorily on a child whose parents are unwilling. The case is

accordingly utterly novel.

The issue.

22. No issue was taken by the Respondents with the proposition that the PKU test is undoubtedly in the best interests of the child, if

those interests are to be determined medically, in an objectively reasonable fashion. It is expressly conceded by them that if the case

were to be determined on the basis of what is considered medically advisable, or of what the vast majority of conscientious parents

actually do, they would inevitably lose the case. The issue is quite different. It relates to whether a court may enforce on parents

who are careful and conscientious a view of their child’s welfare which is rational but quite contrary to the parents sincerely held but

non-rational beliefs. This question of welfare arises in the context of an invasive diagnostic test and not of an immediate and life

threatening emergency.

23. I do not intend the term “non-rational” to be necessarily derogatory: many of mankind's dearest and most beneficent beliefs have

been non-rational in the sense of being incapable of purely rational justification. So, of course, have some of its greatest and most

maleficent illusions. And not infrequently these latter have assumed a cloak of scientific irrefutability.

24. In his judgment in this case, the learned Chief Justice mentions the well known American case of Buck v. Bell 274 US 200. I

respectfully agree with all that he says. The case in my view is a chilling example of logic, rationality or utilitarianism taken to an

extreme which subverts the essential human dignity of the people involved.

25. Buck v. Bell was the attempt of Carrie Buck, an inmate of a State institution for the “feeble minded” to avoid compulsory

sterilisation on the basis, alternatively, of the equal protection clause and the due process clause of the 14th amendment to the

United States Constitution. To our contemporary sensibilities it seems outrageous that she found no protection. The heart of the

opinion of Justice Oliver Wendell Holmes who spoke for the Court apart from one dissentient, was as follows:-

“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it

could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by

those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting

to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are

manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting

the fallopian tubes. Three generations of imbeciles are enough”.

26. The author of this opinion was perhaps the greatest common law judge of the 20th century, and, in the opinion of Judge Richard

Posner, the best read judge in the history of the United States Supreme Court. That such a person could hold and express these

views emphasises the fact, now difficult to realise imaginatively, that in the 1920s and 1930s a belief in eugenics, and in sterilisation

as a means of achieving the objects of eugenics, was widespread in circles which would have thought themselves advanced or

progressive. These beliefs found advocates in the forefront of the medical and scientific communities, and did not want for legislative

and judicial facilitators. It was the revelation of practices in Germany and Russia during and after the Second World War which

destroyed the fashion.

27. There is, of course no comparison whatever between the practice Justice Holmes mandated and that in question here. The

learned trial judge in this case also referred to vaccination and expressed the view that a stronger case could be made for compulsion

in respect of some forms of it than for PKU. But vaccination is not akin to sterilisation. In any event the analogy to compulsory

vaccination rests on the unexamined assumption that feeble mindedness begets crime. But Buck v. Bell occurs to, and disturbs, every

lawyer who approaches the subject of compulsory medical examination or treatment, as it occurred to Counsel on both sides of this

case. The lesson of it to my mind is that it is better to hesitate at the threshold of compulsion, even in its most benevolent form,

than to adopt an easy but reductionist utilitarianism whose consequences may be unpredictable. Ample scope must be given to the

fundamental values of human dignity, as well as those of positive logic. This, perhaps, is reflected in the citation from Denham J. set

out later in this judgment, where, speaking of the free decision to consent or not to the medical treatment of an adult she says:-

“It is not necessarily a decision based on medical considerations. Thus medical treatment may be refused for other than medical

reasons or for reasons most citizens would not regard as rational.....”

28. The impossibility of dealing specifically with the infinitely varied reasons thrown up by individual cases underlies the general

requirement that all recipients of medical examination or treatment must be volunteers. There are clearly exceptions to this, as in the

case of infectious diseases, based on social need, and specifically identified by law.

29. But the least that the fundamental values require is that a proposed mandatory test such as that in question here should be

justified in principle and not simply on the basis of a purely utilitarian rationale.

Statutory provisions on Consent.

30. The Plaintiff is a statutory body and all of its powers are of statutory origin. They arise under a considerable number of Acts going

back over half a century to 1947.

31. The Health Act of 1953 provides at Section 4:-

“(1) Nothing in this Act or any instrument thereunder shall be construed as imposing an obligation on any person to avail himself

of any service provided under this Act or to submit himself or any person for whom he is responsible to health examination or

treatment.

(2) Any person who avails himself of any service provided under this Act shall not be under any obligation to submit himself or

any person for whom he is responsible to a health examination or treatment which is contrary to the teaching of his religion”.

32. The Health Act of 1953 is one of the legislative measures described as the Health Acts. Section 3(4) of the Child Care Act, 1991

provides:-

“The provisions of the Health Acts 1947-1986, and the Health (Amendment) Act 1987, shall apply in relation to the functions of

Health Boards and their officers under this Act and the powers of the Minister under those Acts shall have effect accordingly as

if those Acts and this Act were one Act”.

33. It is clear that the Child Care Act, 1991 must, in the absence of any challenge to its constitutionality, be presumed to be

constitutional. It is equally clear that a child who is the subject of a Care Order under Section 4 of the Act is no longer a person for

whom, for the purposes of consent to a medical examination, his parents are responsible. But the child at the centre of the present

case is not the subject of a Care Order and is a person for whom his parents are responsible. That being so it is clearly the legislative

policy that they cannot compelled by virtue of the Health Acts, or the Child Care Act, 1991, to submit the child for health examination

or treatment. This may not exclude the possibility of another obligation to do so. But it does seem to be a clear indication of

legislative policy on parental discretion, contained in an Act equally entitled to a presumption of constitutionality.

34. Section 44 of the Health (Mental Services) Act, 1981 empowers the Medical Council, with the consent of the Minister, to make

rules in relation to the application to any person of specified therapeutic procedures in connection with mental illness. It then

provides:

“(2) It shall not be lawful to apply or cause to be applied any procedure so specified unless the person has given his consent in

the manner provided for in the rules or, notwithstanding the provisions of Section 4 of the Health Act, 1953, where a person

has not the mental capacity to give his consent, consent is given by a person specified in the Rules”.

35. Though this provision creates an exception the general rule constituted by Section 4 of the 1953 Act, it appears to me to

evidence the legislatures acknowledgement, in 1981, that the general position continued unaltered in relation to psychiatric treatment

except in this respect.

36. The Health Acts 1947 and 1953 are the basis of a health service provided free of charge to many citizens. The 1947 Act repealed

three Victorian Vaccination Acts passed between 1858 and 1868. The 1947 Act itself contained in Part III, Sections 21 to 28,

provisions for a “mother and child service”. This included in Section 25 an obligation to present a child, unless certified exempt, for

medical inspection. These provisions were themselves repealed by the 1953 Act which also contained in Section 4 the provisions

quoted above.

37. The Bill which became the 1953 Act had been announced in a white paper published in July, 1952 and stating an intention:-

“To extend health services, including a mother and child service, in accordance with the general intentions of the 1947 Health

Act and with the provisions of the Constitution and its social directives”.

38. In the Memorandum to government on the 15th November, 1952 this change was prefigured as follows:-

“Part III of the Health Act, 1947, which relates to the proposed mother and child health service, would, if it were retained, have

to be amended to such an extent that practically every section would be materially altered. It is proposed, therefore, to repeal

this part of the Act of 1947 and to include such of its provisions as are appropriate for attention in the new bill. The provisions

relating to compulsory medical inspection and the requirement on school managers to provide facilities for such inspections will

be left out”.

39. The “Heads” of the Health Bill, 1952, circulated with the last mentioned document included Head 24 as follows:-

“The voluntary nature of service: Provide that nothing in the Act with the exception of Head 34 shall be construed as imposing

an obligation on any person to submit himself or any person for whom he is responsible to health examination or treatment.

Note: This provision is intended to make clear the voluntary nature of the legislation. A similar provision in relation to Part III of

the Health Act, 1947 was intended, if that part had been retained”.

40. Head 34 related to the compulsory treatment of congenital syphilis in infants. This was explained in a note as being required

because “The parents of such children have not generally got a normal sense of responsibility towards their children”.

41. The Health Bill, 1952 as introduced contained the present Section 4(1) but not 4(2). This was introduced as an amendment at the

Committee stage and passed after a debate marked by conspicuous, and indeed competitive, commitment to the principle of

voluntarism.

42. While an historical approach to the construction of the Constitution, based on the state of law or public opinion at or near the

time of its passing, is not primary or the only approach to construction, I do not believe that the pre-parliamentary or parliamentary

history of the Act of 1953 is consistent to the smallest degree with the view that a citizen was, or intended to be, under any

obligation to present himself or a child for whom he was responsible, for any medical diagnosis or treatment. On the contrary, the

principle of voluntarism was carefully and specifically enshrined.

43. Accordingly, it appears to me that the principle of voluntarism in respect of medical treatment is plainly established in so far as

public medical services are concerned. This extends to a patient himself or to a person making decisions as to medical treatment for

another person for whom he is responsible.

44. The sole statutory exceptions, other than that quoted above, relate to infectious or communicable diseases.

Medical Treatment at Common Law.

45. This statutory position appears to reflect the position at common law, where consent is the basis of any lawful medical treatment.

I would respectfully endorse what was said in this regard by Denham J. in re A Ward of Court (withholding medical treatment) No. 2

[1996] 2IR 79:-

“Consent

Medical treatment may not be given to an adult person of a full capacity without his or her consent. There are a few rare

exceptions to this e.g. in regard to contagious diseases or in a medical emergency where the patient is unable to communicate.

This right arises out of civil, criminal and constitutional law. If medical treatment is given without consent, it may be trespass

against the person in civil law, a battery in criminal law and a breach of the individual’s constitutional rights. The consent which

is given by an adult of full capacity is a matter of choice. It is not necessarily a decision based on medical considerations. Thus

medical treatment may be refused for other than medical reasons or reasons most citizens would not regard as rational but the

person of full age and capacity may make the decision for their own reasons.

If a patient is a Minor, then consent may be given on their behalf by parents or guardians. If the patient is incapacitated by

reason other than age, then the age of capacity to consent arises. In this instance, where the patient is a Ward of Court, the

Court makes the decision”.

The attempt to dispense with Consent.

46. It thus appears that, subject only to “a few rare exceptions”, all of which are specified by statute or well identified at common

law, consent is required for medical treatment and treatment without such consent is a trespass, a battery, and a breach of

constitutional rights. Denham J’s conclusion in relation to minors - that consent may be given on their behalf by parents or guardians -

seems manifestly correct in the light of the constitutional provisions as to the family and education, considered below. There is

admittedly no statutory provision which can assist the Appellants. Accordingly, the only basis on which relief is sought is a

constitutional one. Specifically, they claim that the refusal of the Defendants to consent to the carrying out of the test is “a failure

to vindicate the personal rights of the infant”.

47. The test is which is the subject of this litigation is the PKU test offered by the Plaintiffs. It is the refusal to consent to that test

that the Plaintiffs complain of: they do not, for example, claim that the Defendants are obliged themselves to arrange to have the

test carried out in the private sector. As their claim was originally formulated, they also sought an injunction restraining the

Defendants from interfering with the carrying out of the test by them, and also an injunction requiring the Defendants to furnish their

consent to the execution of the test.

48. It thus appears that all the reliefs claimed are directed at denying the Defendants their right not to consent to the execution of

the PKU test by the Plaintiffs as Health Board; to compel them to consent to such execution; and to compel them to submit a person

for whom they are responsible to the test.

Section 4 and the obligation asserted.

49. In asserting their entitlement to such reliefs on constitutional grounds, it appears to me that the Plaintiffs are taking, or

approaching, a position whose logical corollary is that Section 4 of the 1953 Act, or part of it, is unconstitutional. If they are

successful, the Defendants will be compelled to present a person for whom they are responsible for treatment, the treatment being

one which, they claim, is contrary to their religious beliefs. Moreover, the treatment for which they will be compelled to present their

son is one provided as a service by the Health Board. This is the very situation that Section 4 of the Act was designed to avoid, by

enshrining the notion of personal or parental consent. It is true that Section 4(1) of the 1953 Act limits itself to preventing the Health

Acts from being read as imposing obligation of the kind specified on any person. The Plaintiffs contend that, accordingly, the provision

is not inconsistent with such a person being under an obligation of the relevant kind by virtue of the Constitution. This is logically

true, though I have no doubt that the possibility of a constitutional obligation to present one’s child for medical diagnosis against

one’s wishes was not present to the mind of the legislature in 1953. Section 4 would make no sense otherwise.

50. Section 4(2) is expressed in a different form. It seems clear that Defendants here are persons who availed themselves of Health

Board Services: indeed, this is how the Health Board came to be aware of them. By subsection (2) such a person “...... shall not be

under any obligation to submit himself or any person for whom he is responsible to a health examination or treatment which is contrary

to the teaching of his religion”.

51. It appears to me that this subsection, unlike the proceeding one, is not confined merely to preventing the Health Acts being read

in a particular fashion but states plainly as a matter of law the person availing himself of service under the Acts shall not be under an

obligation of the relevant kind. In the course of his letter of the 11th May, 2000 the first-named Defendant in explanation of the

failure of his wife and himself to consent to the test said:-

“We refuse to allow blood samples being taken, as these can only be obtained by invasive measures, such as puncturing a blood

vessel. It is our strong religious belief that nobody is allowed to injure anybody else. We hope that through this clarification

court proceedings can be averted”.

52. The last sentence is a reference to the parents willingness to allow the infant’s urine or hair to be tested, which was

unacceptable to the Health Board.

53. Accordingly, I consider it more than arguable that the case made on behalf of the Appellants is one involving as a logical corollary

the proposition that subsection 4(2), at any rate, is repugnant to the Constitution. If this were so, it would have the consequence

that the Plaintiffs would have had to join the Attorney General in their proceedings. This would in my view have been desirable, having

regard to the general effect which the Plaintiffs plainly intend the result of the proceedings to have.

54. Despite this, I do not propose to decide the present case on the basis indicated. Firstly, we were not invited by the Respondents

to do so. Secondly, their assertion of a religious motivation for refusal occurs only in correspondence and not in the subsequent

affidavits and is of a somewhat vague nature. It was not one which the Plaintiffs were seriously challenged to rebut. It may however

be central in another case.

The alleged constitutional obligation.

55. The relevant Articles of the Constitution appear to be Article 40.3, Article 41.1, Article 42.1 and Article 42.5. The texts of these

Articles are set in the judgment of the learned Chief Justice.

56. The only specifically constitutional claim in the Plaintiff’s proceedings is that contained at paragraph (ii) in the Statement of

Claim:-

“A declaration that the refusal of the Plaintiff to consent to the carrying out of PKU test on (the infant) is a failure by them to

vindicate the personal rights of (the infant).”

57. This, plainly, is a reference to the wording of Article 40.3.1 and 2. The first of these sub-articles is a guarantee by the State “in

its laws to respect and as far as practicable by its laws to defend and vindicate the personal rights of a citizen”. The following sub-

article obliges the State to protect and vindicate certain rights in particular, again “by its laws”.

58. Accordingly, this formulation of the claim immediately confronts us with the salient feature that there is no legislation on this

topic, other than that referred to above whose effect is to enshrine voluntarism and parental responsibility. Mr. O’Donnell submitted,

and the learned trial judge agreed, that this a significant factor. I concur with this.

59. In G v. An Bórd Uachtála [1980] IR 32, Finlay P. (as he then was) considered the constitutional rights of a child which he said

included:-

“A constitutional right to bodily integrity and ...... and an unenumerated right to be reared with due regard to her religious moral

intellectual physical and social welfare. The State, having regard to the provisions of Article 40.3.1 of the Constitution, must by

its law defend and vindicate those rights as far as practicable”.

60. Where the State has legislated in the interest of vindicating and defending the rights of children, such legislation has fallen to be

interpreted in the light of the provisions of the Constitution generally and of Articles 41 and 42 in particular. Thus, in Re J.H (An

infant) [1985] IR 375 there was a contest as to custody between the parents of a child and adopting parents. Pursuant to Section 3

of the Guardianship of Infants Act, 1964 the Court was obliged to-

“regard the welfare of the infant as the first and paramount consideration”.

61. In construing the Act Finlay C.J. held that:-

“........ Notwithstanding the presumption of validity which attaches to the Act of 1964 and the absence of a challenge in these

proceedings to that validity, the Court cannot, it seems to me, as an organ of the State, supplant the right to education by the

family and the parents which is conferred on the child by the Constitution unless there is established to the satisfaction of the

Court a failure on the part of the parents as defined in Article 42.5 and 'exceptional circumstances’ ”.

Finlay C.J. continued:-

“I would, therefore, accept the contention that in this case Section 3 of the Act of 1964 must be construed as involving a

constitutional presumption that the welfare of the child, which is defined in Section 2 of the Act in terms identical to those in

Article 42.1, is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons

why this cannot be achieved, or unless the Court is satisfied that the evidence establishes an exceptional case where the

parents have failed to provide education for the child and continued to fail to provide education for the child for physical or

moral reasons”.

A constitutional presumption.

62. If, in a custody dispute being decided in accordance with established statutory criteria the presumption described in the last

extract exists, what of a situation there is no relevant statute at all?

63. I believe that, in such cases, even more obviously than in custody cases where there is a statutory framework, a presumption

exists that the welfare of the child is to be found in the family exercising its authority as such. If this presumption applies in the

construction of a statute which makes no express reference to the authority of the family, it must, a fortiori, apply where the contest

is between the parents of the child and a stranger, in this case a statutory body, outside any statutory framework.

64. This seems to me to follow from the exceptionally strongly worded provisions of Articles 41 and 42 of the Constitution and from

the rights of the child thereunder. I would respectfully adopt the statement of those rights set out at page 394 of the report of the

judgment of Finlay C.J. in JH as follows:-

“(a) To belong to a unit group possessing inalienable and imprescriptible antecedent and superior to all positive law (Article

41.1).

(b) To protection by the State of the family to which it belongs (Article 41.2).

(c) To be educated by the family and to be provided by its parents with religious moral intellectual physical and social education

(Article 42.1)”.

65. Where, as in this case, the parents are conceded to be “careful and responsible” it seems to me that this presumption is a

powerful factor. I would respectfully follow the statement of Finlay C.J. immediately following that last quoted as to the

circumstances in which their role might be supplanted.

“The State cannot supplant the role of the parents, in providing for the infant the rights to be educated conferred on it by

Article 42.1 except ‘in exceptional cases’ arising from a failure for moral or physical reasons on the part of the parents to

provide that education (Article 42.5)”.

66. The presumption to which I have referred is not, of course, a presumption that the parents are always correct in their decisions

according to some objective criterion. It is a presumption that where the constitutional family exists and is discharging its functions

as such, and the parents have not for physical or moral reasons failed in their duty towards their children, their decisions should not

be overridden by the State and in particular by the Courts in the absence of a jurisdiction conferred by statute. Where there is at

least a statutory jurisdiction, the presumption will colour its exercise, and may preclude it.

67. The presumption is not of course conclusive and might be open to displacement by countervailing constitutional considerations as

perhaps in the case of an immediate threat to life.

68. I do not consider that an alternative approach to one based on the presumption I have described arises from the judgment of Ellis

J. in PW v. AW (unreported) High Court 21st April, 1980. This was a custody case where, due to psychiatric illness “valid objection

(could) be taken to the mother’s ability to provide for her child’s welfare”. With the support of the child’s father, custody was given to

an aunt who was in a better position to provide for the child.

69. The child’s mother, AW, challenged the constitutionality of the provision in the Guardianship of Infants Act permitting custody to

be given to a person other than a parent and it was in this context that Ellis J., at page 73 of the judgment made the comments

quoted in the judgment of the learned Chief Justice.

70. I do not consider the approach of Ellis J. to be consistent with that outlined in the Supreme Court judgment in JH, cited above.

Nor do I consider that, in order to arrive at the conclusion that the relevant section of the Guardianship of Infants Act was consistent

with the provisions of the Constitution, it was necessary for Ellis J. to find as he did. Having regard to his preparedness, as outlined at

page 72 of the judgment, to find that the mother had failed in her duty to the child for physical reasons, the statutory authority to

make the Order which she challenged seems fully consistent with Article 42.5 of the Constitution.

71. This constitutional provision was considered in In Re Article 26 of the Constitution and the Adoption (No.2) Bill 1987. The Court

held that:-

“Article 42.5 of the Constitution should not, in the view of the Court, be construed as being confined, in its reference to the

duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that

Section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the

parents. This must necessarily involve supplying only the parental duty to educate but also the parental duty to cater for the

other personal rights of the child”.

Article 42.5

72. It appears, on the basis of the last quotation, that Article 42.5 is broad enough in its terms to cover the range of parental duties,

and not merely those relating to education. This being so, it appears that the presumption that the welfare of the child is to be found

in the family exercising its authority as such is equally broad in its scope and that any rebuttal or displacement of it will normally

involve invocation of the provisions of Article 42.5.

73. Article 42.5 is in the nature of a default provision. Under its terms, the State may in exceptional circumstances, upon a failure of

parental duty for physical or moral reasons, become a default parent. The sub-Article does not constitute the State as an entity with

general parental powers, or as a court of appeal from particular exercises of parental authority. Nor does it, in my view, allow a court

to derive uniform rules for the exercise of that authority in detail.

74. It does not seem to me possible to hold that the respondent parents have failed in their duty towards their children. I entirely

endorse what the learned trial judge has said in this regard. I do not view a conscientious disagreement with the public health

authorities as constituting either a failure in duty or an exceptional case justifying State intervention. I agree with the learned trial

judge when he says:-

“If the State were entitled to intervene in every case where professional opinion differed from that of the parents, or where the

State considered that the parents were wrong in their decision, we would be stepping rapidly towards the Brave New World in

which the State always knows best. In my view that situation would be totally at variance with both the spirit and the word of

the Constitution”.

75. The strength of the language in which, in Article 41 of the Constitution, the prerogatives of the family are acknowledged has

often been remarked upon. The obligation of the State, set out in Article 41.1.2 “to protect the family in its constitution and

authority” is entirely consistent with the restricted statement, in Article 42.5, of the circumstances in which alone the State “may

endeavour to supply the place of the parents”. Analogies or precedents from jurisdictions lacking this distinctive assertion of the

position of the family are of a limited utility in the exposition of the powers of the State, or other public bodies, under the Irish

Constitution.

76. It has been observed that Article 41 and 42 of the Constitution “are generally thought to have been inspired by papal encyclicals

and by Catholic teaching”. (Kelly, The Irish Constitution third edition page 991). Counsel for the Respondents in this case have

submitted, in my view convincingly, that the same approach can be grounded otherwise and have referred us to an American

academic authority, Professor Joseph Goldstein. The latter suggests that the common law “reflecting Bentham’s view, has a strong

presumption in favour of parental authority free of coercive intrusions by agents of the State”. I would endorse this as a description

of the Irish constitutional dispensation, even if any reflection of the views of Jeremy Bentham is coincidental. I do not regard the

approach to the issue in the present case mandated by Articles 41 and 42 of the Constitution as reflecting uniquely any confessional

view.

A simple issue?

77. The Plaintiff’s case was put on the basis that the welfare of the child is the first and paramount consideration, by virtue of

Section 3 of the Guardianship of Infants Act and that, accordingly:-

“The question thus presents itself as a simple one: is the administration of the test a matter which in the light of the unanimous

medical opinion as to the benefit of the test...... of such benefit to the infant that the same should be directed by the Court,

irrespective of the refusal of the infant’s parents to consent to it”.

78. It seems to me that this is to oversimplify the issue by failing to confront or consider the weight which our Constitution requires

to be given to the views and authority of the parents. When that issue was addressed, separately and much later in the Appellants

submissions, it was not in fact contended that Article 42.5, in the circumstances of this case, entitled the State to “supply the place

of the parents”. Instead, it was contended that the intervention proposed fell short of this: it amounted to a “supplanting” of parental

authority in one particular only, but not a “replacement of the parents in any substantive way”. Immediately afterwards it was

submitted that Article 42 “does not preclude a State intervention..... falling short of the supplanting of the parental place referred to

in it”. These submissions do not seem wholly consistent with each other.

79. I do not accept that the authority of the family or role of the parents is capable of subdivision in this fashion. Articles 41 and 42

of the Constitution would be ineffective as guardians of the family “in its constitution and authority” if that authority were capable of

piecemeal erosion or suspension in any way other than that provided by the Constitution itself.

80. I am further concerned by the express failure of the Plaintiffs to identify any ne plus ultra or limit in principle to the allegedly

simple test set out in their submissions and quoted above. Though they disclaimed any present intention but the application of the

PKU test to a small number of children, they declined to limit the application of a “medical benefit” criterion in any express fashion and

even declined, in answer to a specific question, to concede that the approach could never be used to justify the compulsory

treatment of an adult person of sound mind. These omissions perhaps underline the complexity of the subject matter and the

unpredictability of future developments of the deceptively simple test the Health Board proposes.

81. Alternatively, it was submitted that Article 42.5 was not exhaustive of the grounds of which the State might intervene.

82. It is quite clear, on both principle and authority, that “the right and duty of the State to intervene upon the failure of parents to

discharge their duty to a child can be considered both under Article 42.5 and under Article 40.3”, as it was put in the Adoption Bill

reference case, cited above, at page 663. But the argument based on this is circular, for the latter provision mandates intervention

by or under the laws of the State. This legislative intervention is absent. As Kenny J. said in Crowley v. Ireland [1980] IR 102:-

“The obligation imposed on the State by both subsections of Article 40.3 is as far as practicable by its laws to defend and

vindicate the personal rights of the citizen. It is not a general obligation to defend and vindicate the personal rights of the

citizen. It is a duty to do so by its laws, for it is through laws and by laws that the State expresses the will of the people who

are the ultimate authority”. (Emphasis added)

83. I return below to the effect of the absence of legislation on the Courts power or willingness to derive the parental duty alleged by

the Health Board to exist, by the development or extension of legal principles.

Ryan v. Attorney General.

84. The appellant Health Board, in its submissions, placed considerable emphasis on this case. But it was a case of a wholly different

character to the present one. There, the Plaintiff sought to impugn certain sections of a Statute, the Health (Fluoridation of Water

Supplies) Act, 1960. It is impossible to construe the dicta in the judgments outside this context. The extract from the judgment of Ó

Dhálaigh C.J. at page 350 of the report relied upon by the Plaintiff ends with the statement:-

“There is nothing in the Act which can be said to be a violation of the guarantee on the part of the State to protect the family

in its constitution and authority”.

85. A similar issue would arise in relation to the PKU test if it were made mandatory by legislation. The issue would not however be

identical: the Act of 1960 empowered the public authorities to fluoridate the supply of water but did not of course require that any

individual or family drink from the fluoridated supply. In the judgment of the High Court, Kenny J. said at page 314 of the report:-

“The Plaintiff has no legal right to a supply of piped water and the Act of 1960 does not impose any obligation on her or on the

members of her family to drink or use the water coming through the piped water supply. True that water today is a necessity of

life and that the Plaintiff probably has a right of access to a supply of water, but this does not give her a right to a supply of

water which has not been fluoridated through the piped water supply. On this ground alone the case fails. Moreover, I am

satisfied that the Plaintiff and any of the citizens of the State can, by the expenditure of a few pounds, remove all or almost all

of the fluoride ions from the water coming through the piped water supply”.

86. Although the Supreme Court were not as convinced as Kenny J. of the ability to filter out fluoride, the case in both courts

proceeded on the basis that there was no obligation to drink from the public supply of fluoridated water. The Plaintiff failed to prevent

fluoridation of water and the reasons for her failure appear clearly at page 349 of the report. Having set out the nature of the dental

conditions sought to be combated Ó Dálaigh C.J. continued:-

“To deal with the problem the Oireachtas has chosen a method, namely the fluoridation of the public water supply. The Plaintiff

has failed to rebut the evidence that this is not only the most effective method but is indeed the only effective method..... the

Court does not accept that the fluoridation of water is or can be described as, the mass medication or mass administration of

‘drugs’ through water. It has already been pointed out that the fluoridation is a process by which an element which naturally

occurs in water is, in the case of a particular water supply, raised to a level of concentration at which it is found in wholesome

water and that the fluoride ions thus added are not different in nature or action from fluoride ions occurring naturally in water”.

87. In Ryan’s case, the Plaintiff failed to impugn a statute which permitted the fluoridation of water but did not compel anyone to

drink it. In this case the Plaintiff seeks to infer or derive from the Constitution a non-statutory duty positively to oblige the

Respondents to submit their son to the PKU test. The Respondents do not seek to prevent any other family having the benefit of the

test but merely to exempt themselves. The cases are thus quite dissimilar. The ratio decidendi of Ryan wholly derives from the fact

that the Court was considering the constitutionality of a statute. Kenny J. said:-

“When dealing with controversial social economic and medical matters in which it is notorious that views change from generation

to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its

decisions on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there is no

reasonable proportion between the benefits which the legislation will confer on the citizens or a substantial body of them and

the interference with the personal rights of the citizen”.

88. In the final paragraph of the Supreme Court judgment it is said:-

“The Court has no concern with the legislative policy of the Oireachtas. Its function is only to examine the Statutes in which

that policy is embodied and to see if its provisions contravene the provisions of the Constitution. There is a presumption that a

statute is constitutional and the onus of showing that it is unconstitutional rests on the Plaintiff who attacks it. Where on the

face of the Statute nothing unconstitutional appears and the attack is based on its alleged effect, and the conclusion as to the

effect has to be based on evidence of a disputed character, a Plaintiff must fully satisfy the Court that its effect is such as he

contends”.

89. I do not consider that Ryan’s case can be read as providing any authority for the proposition that a duty to submit a child for the

PKU test can be derived by the Courts from the provisions of the Constitution.

Declaration of new duties by the Court.

90. I have already commented on the novelty of the duty sought to be imposed on the respondent parents in these proceedings. It is

unprecedented either domestically or internationally. This is being so it appears appropriate to recall what was said in the context of

another attempt to assert a right or obligation independent of any statutory framework. In L v. L [1992] 2IR 77 there was an

assertion of a right by a spouse to a share in matrimonial property by virtue of Article 41.2 of the Constitution. Finlay C.J. said at

page 107 of the report:-

“...... I conclude that to identify this right in the circumstances set out in this case is not to develop any known principle of the

common law, but is rather to identify a brand new right and to secure it to the Plaintiff. Unless that is something clearly and

unambiguously warranted by the Constitution or made necessary for the protection of either a specified or unspecified right

under it, it must constitute legislation and be a usurpation by the Courts of the function of the legislature”.

91. In my judgment in the recent case of Sinnott v. Minister for Education delivered the 12th July, 2001, I considered the

constitutionally mandated separation of powers in some detail. I do not intend to repeat that discussion here. In any event the cases

are somewhat different by reason of the absence of any significant need for public expenditure here. I would however observe that in

a case such as the present it is particularly desirable from every point of view that any initiative to compel parents to subject their

children to a test such as PKU be based on statute law and not on an application such as the present. I am expressing no view

whatever as to whether such legislation would be desirable or otherwise. But if it were thought that a parent should be deprived of a

right to refuse to consent to the PKU test, or any test, inoculation, examination, or procedure, that would be a major departure in

public policy. The legislature, and not the Courts, are in the best position to judge whether such an innovation is necessary,

proportionate or desirable, whether there are countervailing considerations of a social or medical nature or otherwise; whether there

exists sufficient consensus in the community to make legislation feasible or desirable and many other relevant considerations.

Compulsory medical diagnosis or treatment in any form is, for the reasons identified in the judgment of the learned Chief Justice, a

topic regarded with some unease throughout the civilised world. The degree to which this unease should be recognised, whether

precautions can be taken to allay legitimate fears, and the fundamental question of whether the imperative behind the PKU test or

any other test is sufficient to justify coercion, are all matter best addressed legislatively. As McCarthy J. said in a completely different

context in Russell v. Fanning [1998] IR 505:-

“I question how a court determines (a) A question of national policy; (b) What is the decision on it; (c) Whether or not that

decision is that of the people; (d) How did the people decide such a question; (e) How the requirements of the common good

were taken into account.”

92. Moreover, if and when the legislature decides to introduce legislation of the relevant kind it will be for the Courts to determine, if

the occasion arises, whether such legislation is consistent with the provisions of the Constitution. If the Court is called upon to make

this decision, it will have the benefit of evidence and argument on a specific provision, probably in circumstances where the parties

are more on a footing of equality from the point of view of resources than the present Plaintiffs and Defendants. If the Court

themselves impose a novel obligation, the constitutionally envisaged arrangement whereby one organ of government makes law and

another decides on its constitutionality, would be inhibited in its operation.

93. I have already referred to the portions of the Affidavits filed on behalf of the Plaintiffs which make it clear that what the Health

Board seeks from these proceedings is a ruling of general application. I accept that this Court is confined to considering the case in

the light of the evidence adduced and the submissions advanced. As the learned Chief Justice says in his judgment it is not impossible

that another result might be achieved in a different case decided on different evidence.

94. I consider however that, in practice, declarations of the kind now sought would have the effect if not the legal character of

legislation for the vast majority of persons affected. It would, to say the least, have a “chilling effect” on other persons sharing the

Respondent’s view or some version of it. This consideration might not preclude the Courts from acting to declare and enforce the

rights of a Plaintiff, or an infant, in a situation of emergency. However the present case is specifically put before us as one intended

to lead to a result with general application. I consider that a case so framed and advanced seeks to bring the Court too close to the

legislative function.

95. There is a separate but related difficulty in asking the Courts to derive from the Constitution a novel duty or obligation to be

imposed on parents, or on any group of citizens. It arises from the nature of the Constitution itself. This difficulty is well expressed in

the judgment of Costello J. (as he then was) in P.H. & Ors. (Infants) v. John Murphy & Sons Ltd. [1987] IR 621. There, the Plaintiffs

were infants whose father had been seriously injured due to the negligence of the Defendant. Proceedings instituted on behalf of the

father were settled in a substantial sum. The infants then instituted proceedings claiming, inter alia, damages for breach of

constitutional duty in respect of the loss of the non-pecuniary benefits which the father of a family bestows on his children. This

cause of action was said to exist by virtue of Article 41.1.2 of the Constitution.

96. Costello J. held that no duty of care was owed by the Defendants to the infant Plaintiffs by virtue of the Constitution. In arriving

at this conclusion he held:-

“The guarantee which the State gives in Article 41.1.2 is a guarantee to protect the Family ‘in its constitution and authority’.

So, if it could be shown that the Oireachtas had enacted a law which in some way failed to protect the ‘constitution’ of the

Family or the ‘authority’ of the Family (as defined in the Constitution) then the State’s guarantee would have been breached.

Again, the State would have failed in its obligation to protect the family if one of its officials deliberately acted so as to

attack or impair the constitution or the authority of the Family and an action for damages would lie unless the impugned Act

could in some way be justified under some other provision of the Constitution. But the constitution and the authority of the

Family unit could be impaired, indeed destroyed, by the negligent and careless act of a State official - for example by the

negligent driving of an army lorry which killed the parents of young children and which resulted in the dispersal of the children

into different foster homes.

Could it be said that the State had then broken its Article 41.1.2 guarantee? I do not think so. It must be remembered that the

Court is construing a constitutional document whose primary purpose in the field of fundamental rights is to protect them from

unjust laws enacted by the legislature and from arbitrary acts committed by State officials. It would require very clear words to

construe the State’s constitutional obligations (as distinct from its common law obligations) as including a duty to ensure that

its officials would not drive carelessly. I do not think that the words employed in Article 41 are apt to do so, and the State’s

guarantee of protection does not in my judgement include a guarantee that its officials will drive State vehicles without

negligence.

It follows that the rights which are conferred by Article 41.1.2 are

(a) the right to protection from legislation which attacks or impairs the Constitution or the authority of the Family and

(b) the right to protection from the deliberate acts of State officials which attack or impair the Constitution or authority

of the Family”.

(Emphasis in original)

97. I respectfully agree that the primary purpose of the provisions of the Constitution as to fundamental rights is to protect such

rights and the people who enjoy them from unjust laws and from arbitrary State action. A person who enjoys such right is also

entitled to the protection of the Court against the infringement of such right by persons other than the State: see Meskell v. CIE

[1973] IR 121 and Conway v. Irish National Teachers Organisation [1991] 1 IR 305. But that this is quite different from deriving and

enforcing the entirely novel duty proposed on ordinary citizens based on provisions whose primary purpose is “to protect them from

unjust laws enacted by the Oireachtas and from arbitrary acts committed by State officials”.

Parent and child.

98. A family, such as the family of which the Respondents are the heads, consist of parents and children. Since a child will not himself

or herself be capable of making or of acting upon any decision as to its own welfare, these decisions must necessarily be made by

some person or agency on his or her behalf. In practice, this will almost invariably be either the parents or a parent on the one hand

or a State or public agency of some sort on the other. The Plaintiff urges us to let a particular decision be taken by an entity of the

latter sort because, it says, the decision that such a body will take has been rationally shown to be in the objective best interest of

the child. But in the choice of decision maker, the Constitution plainly accords a primacy to the parent and this primacy in my view

gives rise to a presumption that the welfare of the child is to be found in the family exercising its authority as such. This reflects the

right both of the parents and of the children to have the family protected in its Constitution and authority.

Conclusion.

99. I do not consider the presumption just described to have been rebutted or the conditions for the displacement of parental

authority to have been met. I would make no Declaratory Order at the suit of the Health Board. I would decline to make the first

declaration sought, apart from any other consideration, on the basis that in its own terms it is not a declaration of right, such as a

court can properly make, but merely an invitation to express an opinion on a matter which is not of a legal nature. Alternatively, if the

claimed declaration is to be regarded as being of a legal nature on the basis that the term “best interest” is a term of art embodying

exhaustively the basis on which the Court should decide a mater affecting the welfare of a child, I would refuse to make the

declaration in the form sought on the basis that it fails to reflect the presumption in favour of family autonomy which I believe to

exist.

100. I would decline to make the second declaration sought for the reasons set out earlier in this judgment.

101. I would add that the exhaustive argument in this case has, in my opinion, provided no support whatever for the view that the

Health Board could have any liability to a child to whom, through his parents, the PKU test was effectively offered but declined by

them on his behalf.