Children's Rights and End of Life Decision-Making: In the Matter of JJ

• Author: Finn Keyes
• Position: LL.B (Dubl), LL.M (UCL)
• Pages: 58-70

IRISH JUDICIAL STUDIES JOURNAL

58

[2021] Irish Judicial Studies Journal Vol 5(1)

58

CHILDREN’S RIGHTS AND END OF LIFE

DECISION-MAKING

: IN THE MATTER OF JJ

Abstract: This article analyses the decision of the Supreme Court in In the Matter of JJ [2021] IESC 1.

The article observes that this case differs from previous end-of-life cases in that it countenances a mixture of

acts and omissions leading to the death of the patient. It outlines the legal and ethical issues with respect to

acts and omissions in end-of-life decision-making and analyses how the Court engaged with those issues. The

article also observ es that the decision provides the most authoritativ e guidance yet as to the effect of the

Children's Rights Referend um on children' s rights and the thres hold f or State intervention for failure of

parenta l duty. It notes tha t while previo us commentary had suggested that Art. 42A of the Constitution

would not have a significant impact on the threshold for State intervention, the decision in Re JJ clearly signals

that the Referendum has effected a significant change in the law in this regard .

Author

:

Finn Keyes LL.B (Dubl), LL.M (UCL), Barrister-at-Law.

Introduction

Re JJ is a profoundly sad case that has required the Supreme Court (‘the Court’) to engage

with some of the most weighty constitutional issues in our jurisprudence. The judgment is

an intricate and measured examination of the rights of the family, the rights of the child,

medical ethics, and the role of the State in providing for the welfare of incapacitated persons.

1

This article will outline and analyse the findings of the Court relating to end of life care, the

boundary betw een euthanasia and lawful palliative care, and the threshold for State

intervention in the heal thcare of children in the aftermath of the Children’s Rights

Referendum. The article will confine itself primarily to the joint judgment of O’Donnell,

Dunne, O’Malley, and Baker JJ (‘the Principal Judgment’), but will not address in detail the

discussion of the wards of court system in the concurring judgments of Baker J and

McKechnie J.

Facts

In June 2020 , a young boy (referred to as ‘John’ in the judgment) suffered catastrophic

injuries in an accident, including a ‘devastating’ brai n injury. His tragic condition was

summarised by the Court:

As a result of his i njuries, John is currently fed by a nasogastric tube, has a

long-term cat heter to facilitate the delivery of medications… It is not

expected that John will ever walk, talk , develop any meaningful awareness of

his surroundings, be able to communicate or process information, nor will

he ever be capable of performing any voluntary movements.

2

As a result of his neurological injuries, John developed a condition known as ‘dystonia’.

Dystonia is a hyperkinetic movement disorder that someti mes arises out of brain injuries.

The condition causes abnormal electrical signals to be sent to the muscles, which ca n result

in painful and prolonged involuntary contractions of the muscles. The medical consensus

1

In th e Matte r of JJ [2021] IESC 1.

2

Re JJ (n 1) [4].