North Western Health Board -v- H.W. & C.W., [2001] IESC 90 (2001)

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North Western Health Board -v- H.W. & C.W., [2001] IESC 90 (2001)

JUDGMENT BY: Denham J.

THE SUPREME COURT

Keane C.J.

Denham J. 321/00

Murphy J.

Murray J.

Hardiman J.

BETWEEN/THE NORTH WESTERN HEALTH BOARD PLAINTIFF/APPELLANT

and

H.W. and C.W. DEFENDANTS/RESPONDENTS

Judgment of The Hon. Mrs. Justice Susan Denham delivered on the 8th day of November, 2001.

1. Appeal

This is an appeal by the North Western Health Board, hereinafter referred to as the plaintiff, from a judgment and order of the High Court (McCracken J.) delivered on 27th October, 2000. H.W. and C.W., hereinafter referred to as the defendants, are the parents of a baby boy, J.W., born in 2000. The High Court ordered that the plaintiff's motion for an order permitting the plaintiff to carry out the PKU test on J.W., notwithstanding the refusal of his parents, or restraining the defendants, their servants or agents from impeding the carrying out by or on behalf of the plaintiff of the PKU test, be refused.

2. The Background

The background to this case was described by the learned High Court judge. He stated:"There is a screening test, commonly known as the PKU test, which has been available for over thirty years for testing for the presence of four metabolic conditions and one endocrine condition in children. This test is normally carried out on new born infants between 72 hours and 120 hours after birth. It is in effect a blood test, the blood being extracted from the infant by puncturing the skin, usually in the heel of the infant, with a lancet which has a guard which ensures it can only penetrate to a limited extent, and then extracting some drops of blood, usually by pressure on the heel close to where the lancet was inserted. The resulting drops of blood are collected on what is called a Guthrie card and is sent to Temple Street Hospital in Dublin where it is tested for these conditions.

In the present case we are only concerned at this stage with the screening for three of these conditions which may be referred to briefly.

1. Phenylketonuria. This is a condition which may cause severe mental handicap, but which may be treated primarily by diet throughout the lifetime of the sufferer. It is a relatively common disorder and has an incidence of 1 in 4,500 in this country.

2. Homocystinuria. This is a metabolic condition which may cause intercranial bleeding or strokes, and also can cause dislocation of the lenses of the eye and can result in severe mental handicap. This again can be treated by diet control for life and the incidence in this country is 1 in 49,000.

3. Hypothyroidism. This condition results from the failure of the thyroid gland to produce thyroxine and again results in mental handicap. It can be treated and controlled by medication and its incidence in Ireland is 1 in 3,500.

It is common to all these conditions that they are treatable, but once the damage has been caused by the condition it is usually irreversible and thus it is medically considered of great importance to have the condition diagnosed at as early a stage as possible.

This screening has been carried out for over thirty years. Originally, the screening was only for phenylketonuria, and this was extended to the other conditions at various times up to the year 1979. This screening is not provided for by legislation, but is a service which is being provided by the Department of Health and the local health boards for the benefit of the community in general. There is no provision or regulation making it mandatory, but in reality it is now carried out more or less as a matter of course, and the Department of Health records would indicate that there are only about six cases per year in which parents refuse to have the test carried out.

In September 1990 a working group was set up by the then Minister for Health to report on metabolic disorders, which report recommended certain standard procedures with an aim or objective of 100% coverage of infants in the State. Under the heading "Responsibility of Parents" the report recommended:-

'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.'"

3. The Facts

The facts are not in issue in this case, they were set out by the learned High Court judge as follows:"The defendants are the parents of a baby who I shall call Paul (not his real name) who was born earlier this year. They are resident in the functional area of the plaintiff health board. Paul was in fact born at home, and shortly after his birth the nurse employed by the plaintiff sought to have the PKU test carried out on Paul. The defendants refused to allow the test to be carried out, and after some correspondence wrote to the plaintiff's solicitors in the following terms:

'As you know, the PKU test is a test which can be carried out on different substances, such as urine, blood and hair samples. Our decision regards our son (Paul) is as follows: we have no...

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