Fitzpatrick v F.K.

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 07 December 2006
• Neutral Citation: [2006] IEHC 392
• Date: 07 December 2006
• Court: High Court
• Docket Number: [2006

FITZPATRICK & RYAN v K (F) & AG

BETWEEN

CHRIS FITZPATRICK AND JOHN RYAN

PLAINTIFFS

AND

F.K. AND THE ATTORNEY GENERAL

DEFENDANT

[2006] IEHC 392

[No. 4427 P/2006]

THE HIGH COURT

Abstract:

Practice and procedure - Amicus curiae - Joinder of party - Representative of Jehovah's Witnesses - Partisan - Direct interest - Freedom of conscience - Other potential plaintiffs - Defendant legally represented - Ability to assert interests -Public law - Whether Watch Tower Bible and Tract Society could be joined in proceedings or act as an amicus curiae

: The Watch Tower Bible and Tract Society, the legal representative of Jehovah's Witnesses in Ireland, sought to be joined in proceedings or act as amicus curiae where a Jehovah's Witness alleged that her freedom of conscience had been violated through a court ordered blood transfusion in a hospital.

Held by Clarke J. that the party seeking to intervene in a dispute had to establish a direct interest in the litigation. The Society lacked such an interest. The Society would be partisan and was not acting in a public law capacity. No evidence existed as to an inadequacy of resources on the part of the defendant to litigate. It would not advance different arguments to the defendant. Other pregnant Jehovah's witnesses existed entailing that better plaintiffs could litigate a more direct interest. A looser standing requirement would be adopted in the case of an emergency. The amicus application would be refused.

Reporter: E.F.

DOHERTY v SOUTH DUBLIN CO COUNCIL & ORS UNREP SUPREME 31.10.2006 2006/15/3165 2006 IESC 57

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 41

CONSTITUTION ART 42.5

CONSTITUTION ART 44.2.1

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARD (PIAB) & IRELAND & AG 2005 3 IR 328

BARLOW & ORS v FANNING & UNIVERSITY COLLEGE CORK (UCC) 2002 2 IR 593 2003 1 ILRM 29

BUPA IRELAND LTD & BUPA INSURANCE LTD v HEALTH INSURANCE AUTHORITY & ORS 2006 1 ILRM 308 2005/6/1301 2005 IESC 80

SPIN COMMUNICATIONS T/A STORM FM v INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) & ANOR UNREP SUPREME 14.4.2000 2000/16/6286

RSC O.84 r22(2)

RSC O.84 r22(6)

CAHILL v SUTTON 1980 IR 269

H (I) v MINISTER FOR JUSTICE EQUALITY & LAW REFORM 2003 3 IR 197

1. Introduction

2 2 1.1 The substantive proceedings in this case arise out of very difficult circumstances which arose at the Coombe Womens Hospital in September last. The plaintiffs ("the Hospital") are respectively the Master and the Secretary Manager of the Hospital and sue in that capacity. The first named defendant ("Ms. K.") was, at that time, a patient of the hospital who, it would appear, suffered a massive haemorrhage shortly after delivering a child. Ms. K. is a Jehovah's Witness and as such, it would appear, declined to accept a transfusion. In those difficult circumstances the hospital applied to this court seeking an order which would permit the hospital to administer to Ms. K. "all appropriate medical treatment and other ancillary procedures including blood transfusion and clotting agents". The hospital also sought to be authorised to take all appropriate steps including restraint of Ms. K. to enable it to administer the relevant treatment. It would appear that the circumstances surrounding the application were such that there was a real risk that Ms. K. would die if treatment was not administered in very early course. In those circumstances this court (Abbott J.) considered an ex parte application made on behalf of the hospital and made the order sought.

3 3 1.2 The proceedings continue and raise very important questions concerning, on the one hand, the entitlement of Ms. K., in accordance with her religious beliefs, to refuse treatment which is inconsistent with those beliefs and, on the other hand, the obligations of the hospital, this court, and the State, to safeguard Ms. K's right to life together with similar rights asserted in relation to her child and family. It is in the context of those issues arising in the proceedings that the Watch Tower Bible and Tract Society of Ireland ("the Society") has sought to be joined in these proceedings. The Society is the legal body that represents Jevovah's Witnesses in Ireland. In its initial application the Society sought to be joined either as a co-defendant or as a notice party. In the course of argument the possibility that it might be appropriate to join the Society as an amicus curiae also arose. This judgment is directed towards those issues.

2. Procedural History

2 2 2.1 As indicated above, the original application brought on behalf of the Society sought the joinder of the Society as either a co-defendant or a notice party. At the hearing of the motion that application was resisted on behalf of the hospital. Counsel for the Attorney General adopted a neutral position. The matter was left to stand for a small number of days to enable certain factual matters to be clarified. When the matter resumed, the question as to whether it might be appropriate, in the alternative, that the Society be joined as an amicus curiae was also debated. I then reserved judgment. While I was in the course of considering the issues, the Supreme Court delivered its judgment in Doherty v. South Dublin County Council (Unreported, Supreme Court, 31 ^st October, 2006 Fennelly, Macken JJ.). In the light of that judgment I listed the matter for further submission and, in so doing, invited counsel for the Attorney General to take instructions as to whether the Attorney wished, despite his general neutral position, to offer any submissions in relation to the question of whether it would be appropriate to join the Society as an amicus curiae At the subsequent hearing both the hospital and the Attorney General submitted that it would not be appropriate to join the Society in that capacity. In so doing the Attorney General maintained his neutral position in respect of the other aspects of the joinder application.

3 3 2.2 This judgment is, therefore, directed to the question of whether it is appropriate, in all the circumstances, to join the Society in any of the capacities to which I have referred. I propose dealing first with the question of whether it is appropriate to join the Society as a party to the proceedings either as a co-defendant or as a notice party.

3. The Society as a Party?

2 2 3.1 The factual basis put forward by the Society for suggesting that it should be joined as a party is to be found principally in an affidavit of Arthur Matthews who is a member of the branch committee of the Society. He draws attention to the fact that there are more than 5, 000 Jehovah's Witnesses in Ireland and, for the reasons which he sets out in his affidavit, the interpretation placed by Jehovah's Witnesses on certain aspects of the new testament leads them to the view that there is a prohibition on the taking of blood into their bodies which includes a prohibition on the acceptance of the transfusion of blood and other related blood products. In those circumstances, it is said, these proceedings have the potential to affect all Jehovah's Witnesses, raising, as they do, the balance between freedom of religion and conscience on the one hand and the State's obligations to protect life family and like rights on the other hand.

3 3 3.2 In legal argument counsel for the Society made the point that the declaratory relief sought in these proceedings is, he contends, wide and has the potential to far transcend the facts of Ms. K's case. In those circumstances it is contended that the Society has a legitimate interest in the outcome of the proceedings which it is entitled to protect by being joined as a party. The substantive declaratory reliefs which are sought are as follows:-

1 An order (including, if necessary, an interim and interlocutory order) authorising the Plaintiffs in their capacity as representatives of the Coombe Women's Hospital (and such medical consultants, doctors, midwives, nurses and other medical employees of the Hospital as they shall authorise) to administer to the First Named Defendant (including, where necessary, such reasonable restraints as may be appropriate or necessary) all medically appropriate treatment (including the administration and supply of blood and clotting agents by transfusion and otherwise) as they consider necessary to safeguard her life, health and general welfare.

2 A declaration that the Hospital was and is entitled to apply to this Honourable Court for the aforesaid order or orders by virtue of the provisions of Article 40.3.1, Article 40.3.2, Article 41 and Article 42.5 of the Constitution of Ireland.

3 A declaration that this Honourable Court was and is entitled and/or obliged to grant the aforesaid relief by virtue of the provisions of Article 40.3.1, Article 40.3.2, Article 41 and Article 42.5 of the Constitution of Ireland.

4 A declaration that the First Named Defendant's constitutional right to freedom of conscience and the free practice of religion under Article 44.2.1 of the Constitution does not extend to enabling her to decline appropriate medical treatment of the kind described at paragraph 1.

5 In the alternative, a declaration that the First Defendant's rights under Article 44.2.1 of the Constitution must yield to the State's obligations under Article 40.3.1, Article 40.3.2, Article 41 and Article 42.5.

4 4 3.3 That the Society has an interest, in the colloquial sense of the word, in the proceedings, cannot be doubted. The proceedings raise an issue which is likely to be of significant relevance to all members of the Society. However that, of itself, does not seem to me to be sufficient. There are very many issues which arise in the courts which have the capability to be of interest, in the colloquial sense, to those of differing religious beliefs and to those whose ethical or moral viewpoint may not be...