Court urges ‘open minds and hearts’ in appeal over treatment of brain-injured boy
Posted on 15th December 2020 at 19:41
Case raises significant issues about when State may intervene on medical decisions about children
A Supreme Court judge has urged all involved in an important appeal by the parents of a profoundly brain-injured boy over his medical treatment to listen to each other with “open minds and open hearts”.
Mr Justice Donal O’Donnell made the remark on Tuesday as the five judge court began hearing the appeal which raises significant issues about when the State may intervene to permit medical decisions to be taken about children contrary to the wishes of their parents
The appeal is against High Court orders permitting a hospital to manage the treatment of a boy, a ward of court referred to as John, as it considers appropriate.
The hospital says John has no hope of making any meaningful recovery from catastrophic injuries sustained in a road accident last summer and it needed the “contingency” orders to treat him as it considers clinically and ethically appropriate.
Those include orders permitting it administer pain-relieving medications for dystonia, a movement disorder which, unless fully controlled by medication, causes muscles to contract uncontrollably.
The parents’ concerns include that those medications can compromise his respiratory function and that the hospital wishes to withhold invasive interventions such as CPR should John’s condition substantially deteriorate and effectively administer a palliative care regime.
They say it is too soon after the accident to determine John’s prognosis and he should receive any treatment that will keep him alive.
Last month, High Court president Ms Justice Mary Irvine concluded there had been a failure of duty by the parents and their love for John had blinded them to the reality of his condition. The orders, including taking John into wardship, were in his best interests and necessary to vindicate his rights, she held.
The Attorney General and Irish Human Rights and Equality Commission are involved in the Supreme Court appeal over that decision.
On Tuesday, Mr Justice O’Donnell said the court appreciated very difficult issues arose in this “extremely tragic” case and that “heart-rending” decisions faced the parents and clinicians.
The court had to decide the issues for the sake of John, and for others in similar positions, and he asked the parties to listen to each other’s arguments with “open minds and open hearts”.
When this case is over, John “will still need the love of his parents and the great care he has received from his clinical team”, he said.
The parents, who are separated, are separately represented.
In her submissions, Siobhán Phelan SC, for the mother, argued decisions about the medical treatment of a child are an “inalienable and imprescriptible” right of parents and children, protected under Articles 41 and 42A of the Constitution. The decision making is exercised as part of the autonomy of the family and the right inheres fundamentally to the benefit of the child, she said.
The High Court erred in losing sight of the right as also inhering to the child and of the importance of the parents exercising life and death decisions on behalf of the child, she argued.
While that right may be interfered with in exceptional circumstances of a failure of parental duty, there was no such failure by John’s mother, counsel said.
The High Court also erred in inferences it made from the medical evidence, she submitted. While doctors held the view John will not make a “meaningful” recovery, “meaningful is subjective”.
John’s mother believed it is too soon to know how much of a recovery he will make. John responds to noise, an indication of consciousness, and his mother believes he is soothed when she sings to him and appeared to smile at antics of one of his brothers, counsel said.
Ciarán Craven SC, for the father, endorsed Ms Phelan’s core arguments concerning the constitutional rights of parents and children in relation to medical treatment.
John’s right is to have decisions about his welfare made by people who know him best and love him, counsel argued. There was no evidence of parental failure here to justify wardship or intervention of the State as a “default parent” but the High Court had “short-circuited” that issue.
John has “confounded” many of the medical expectations for him and his father supports the mother in wanting him to get “the best chance he can be given”.
The appeal continues on Wednesday.
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