Baby AB Children's University Hospital, Temple Street v CD and EF

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 12 January 2011
• Neutral Citation: [2011] IEHC 1
• Court: High Court
• Docket Number: [2011 No. 33 P]
• Date: 12 January 2011

[2011] IEHC 1

THE HIGH COURT

[No. 33 P./2011]

Children's University Hospital, Temple Street v D (C) & F (E)

IN THE MATTER OF BABY AB

BETWEEN

CHILDREN'S UNIVERSITY HOSPITAL, TEMPLE STREET

PLAINTIFF

AND

CD AND EF

DEFENDANTS

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45

CONSTITUTION ART 34.1

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)(A)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)(C)

R LTD, IN RE 1989 IR 126

CIVIL LAW (MISC PROVISIONS) ACT 2008 S27(1)

CIVIL LAW (MISC PROVISIONS) ACT 2008 S27(2)

CIVIL LAW (MISC PROVISIONS) ACT 2008 S27(3)

CIVIL LAW (MISC PROVISIONS) ACT 2008 S27(11)

CIVIL LAW (MISC PROVISIONS) ACT 2008 S27(3)(B)

BANK OF IRELAND v PURCELL 1989 IR 327

INTERPRETATION ACT 2005 S5(1)

INTERPRETATION ACT 2005 S5(1)(B)

CIVIL LAW (MISC PROVISIONS) ACT 2008 S27(3)(A)

AG v X 1992 1 IR 1

CONSTITUTION ART 44.2.1

CONSTITUTION ART 40.6.I

WEST VIRGINIA BOARD OF EDUCATION v BARNETTE 1943 319 US 624

FITZPATRICK v K (F) (NO.2) 2009 2 IR 7

CONSTITUTION ART 41

CONSTITUTION ART 42

CONSTITUTION ART 41.1

CONSTITUTION ART 42.5

PRINCE v MASSACHUSETTS 1944 321 US 158

NORTH WESTERN HEALTH BOARD v W (H) 2001 3 IR 622

BABY B, IN RE UNREP HIGH COURT 28.12.2007 (NO TRANSCRIPT AVAILABLE)

CONSTITUTION

Freedom of religion

Rights of child - Rights of parents - Parental failure - Parental refusal on religious grounds to consent to blood transfusion for baby - Test for State intervention to protect welfare of child - Whether State can override rights of parents to protect children - North Western Health Board v HW [2001] 3 IR 622 applied - Constitution of Ireland, 1937, Articles 34.1, 40.3.2 and 6.i, 41.1, 42.1 and 5, 44.2.1 - Relief granted (2011/33P - Hogan J - 12/1/2011) [2011] IEHC 1

Re Baby AB: Children's University Hospital v D(C)

PRACTICE & PROCEDURE

Hearing

Otherwise than in public - Order prohibiting identification of party - Medical confidentiality - Statutory interpretation - Whether court can make order prohibiting identification of party with medical condition where identification would not cause undue stress due to lack of awareness - Bank of Ireland v Purcell [1989] IR 327 applied - Courts (Supplemental Provisions) Act 1961 (No 39), s 45 - Interpretation Act 2005 (No 23), s 5 - Civil Law (Miscellaneous Provisions) Act 2008 (No 14), s 27 - Action heard in camera (2011/33P - Hogan J - 12/1/2011) [2011] IEHC 1

Re Baby AB: Children's University Hospital v D(C)

Facts: In the early hours of the morning in December 2010, the Court had made an order sanctioning the administration of a blood transfusion to a three month old baby who was ill and urgently required a blood transfusion. An order was made pursuant to s. 27 Civil Law (Miscellaneous Provisions) Act 2008 prohibiting the publication or broadcast of any matter likely to identify the baby. The Court later delivered a written judgment. AB was born in September 2010 and his twin sister did not survive birth. His parents, as committed Jehovah's Witnesses, were opposed to a blood transfusion but had consented to the use of certain blood products. S. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 purported to provide powers to limit the identification of parties concerning medical conditions where identification might result in undue stress. The issue arose as to whether a literal or other interpretation of this clause was appropriate as Baby AB was not conscious. The Court considered how to balance the right to life, protected pursuant to Article 40.3. and freedom of religion, as well as family autonomy.

Held by Hogan J. that the Court would grant a declaration that it would be lawful in these circumstances to administer a blood transfusion in the case of AB. A purposive approach to 27 of the Act of 2008 was mandated pursuant to s. 5 Interpretation Act 2005. The Court had jurisdiction to override religious objections where adherence to beliefs would threaten the life and general welfare of the child. The declaration was limited to the clinical events and was not to be construed as conferring an open-ended entitlement to administer such treatment irrespective of the wishes and beliefs of the parents.

Reporter: E.F.

1 1. In the early hours of the morning of 27 ^th December, 2010, following a hearing in my house I made an order sanctioning the administration of a blood transfusion to a three month old baby who was desperately ill and who, I was told, urgently required that transfusion within a matter of hours. Although for the reasons I shall now shortly outline, a public hearing of the matter was perforce impossible in the circumstances and even though I also made an order pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 ("the 2008 Act") prohibiting the publication or broadcast of any matter that would be likely to identify the baby in question, at the conclusion of the hearing, I nonetheless indicated that I proposed to deliver a judgment in open court. The purpose of this judgment, therefore, is not only to give written reasons for my decision, but also to fulfil insofar as it is possible to do so, the requirement of Article 34.1 of the Constitution that justice be administered in public "save in such special and limited cases as may be prescribed by law." While it was not possible to hold the hearing in open court, the delivery of this judgment will perhaps mitigate the effect of this somewhat by providing a record of what transpired.

2 2. In line with the order which I made under s. 27 of the 2008 Act, I propose to use random letters to describe the baby ("Baby AB") and the parents ("CD and EF") to ensure that his identity is not thereby disclosed.

3 3. AB was born in September 2010, but his twin sister sadly did not survive. The baby was very unwell by reason of acute bronchiolitis on 25 ^th December, 2010, and his condition deteriorated further during the course of the day. At one point AB stopped breathing and had to be resuscitated. He also had a hypoxemic episode ( i.e., a period of low oxygenation), an incident with potentially ominous implications.

4 4. AB was transferred from another hospital to the plaintiff hospital in the early hours of 26 ^th December. By the early evening of 26 ^th December the situation had become critical. While AB suffers in any event from low haemoglobin, this level was dropping further by reason of his illness and by reason of necessary blood testing that was deemed clinically essential for treatment optimisation. The fact that the haemoglobin was dropping further significantly hindered the capacity of his body to deliver oxygen to his vital organs and to maintain normal neurological functions. In that regard, evidence was given to the effect that AB's liver was somewhat distended.

5 5. The usual trigger for a blood transfusion is where the haemoglobin levels drop below 8.0 g/dl. By 9pm on 26 ^th December, it was clear that the haemoglobin level was on a downward spiral and had reached the point where a transfusion was now absolutely necessary. While AB's parents, CD and EF, were clearly anxious for his welfare and sought the very best medical care, as committed Jehovah Witnesses, they were steadfast in their opposition to this procedure. They had, however, consented to the use of certain blood products earlier that day which had been administered to AB. By this point, however, it was clear that this in itself would not be sufficient and that a transfusion was now necessary.

6 6. Faced with this objection from the parents, the Hospital resolved that it should then apply to this Court for an order which sanctioned the transfusion. Contact was made with the Duty Registrar who in turn made contact with me shortly after 10pm on 26 ^th December. It was agreed that an emergency hearing would be held in my own house at midnight or as soon thereafter as the parties could assemble.

7 7. In the event, the hearing commenced shortly before 1am on the morning of 27 ^th December and concluded at about 2.30am. The Hospital was legally represented by solicitors and counsel and the parents appeared in person.

8 8. At the hearing counsel for the Hospital, Mr. McEnroy S.C., stressed the urgency of the matter and why a transfusion was absolutely necessary in the circumstances. While the parents were present, it was simply not possible in the circumstances for them to be legally represented or to have members of Hospital Liaison Committee of the Jehovah Witnesses present. The treating consultant, Dr. Kevin Carson, who is Clinical Director of Intensive Care at the plaintiff hospital, was sworn and gave evidence detailing the medical history to date. He confirmed that AB's life was in danger. He specifically confirmed in answer to a direct question from me that there were no medical alternatives to a transfusion and that the issue had to be dealt with immediately within a matter of hours.

9 9. As already indicated, the parents, CD and EF, were also present. They said that it had not been possible to obtain professional representation given the time constraints. They are the parents of a large family and it appears that this Court has also sanctioned a blood transfusion in respect of another child of theirs, so that they were to some extent familiar with the issues which would arise in such an application. While they wanted the best for their child and were delighted with the quality of the medical care which he had received, they explained that given the tenets of their religious faith they could not possibly consent to a blood transfusion. They also said that they understood their religious objections would be overridden by this Court and they seemed resigned to this fact.

10 10. There is no doubt as to the...