Fitzpatrick v F.K. and another

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 25 April 2008
• Neutral Citation: [2008] IEHC 104
• Court: High Court
• Docket Number: [2006 No.
• Date: 25 April 2008

Fitzpatrick & Ryan v K (F) & AG

BETWEEN/

CHRIS FITZPATRICK AND JOHN RYAN

PLAINTIFFS

AND

F.K.

AND

THE ATTORNEY GENERAL

DEFENDANTS

[2008] IEHC 104

No. 4427 P/2006

THE HIGH COURT

CONSTITUTIONAL LAW

Personal rights

Bodily integrity - Medical treatment - Consent - Capacity - Refusal of blood transfusion on religious grounds after birth of baby - Test applicable - Whether patient had capacity to refuse treatment - Whether court could order transfusion against competent patient's wishes - Whether constitutional rights of child overrode mother's constitutional rights to religious freedom - In re a Ward of Court (withholding medical treatment) (No 2) [1996] 2 IR 79, In re T (Adult: refusal of medical treatment) [1993] Fam 95, In Re C (Adult: refusal of medical treatment) [1994] 1 WLR 290, In re MB (Medical Treatment) [1997] 2 FLR 426, HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam), [2003] 2 FLR 408 and Malette v Shulman (1990) 67 DLR followed - Constitution of Ireland, 1937, Article 40.3 and Article 44 - Declaration granted (2006/4427P - Laffoy J - 25/4/2008) [2008] IEHC 104

Fitzpatrick v K(F)

PRACTICE AND PROCEDURE

Ex parte orders

Setting aside - Failure to notify affected party - Whether ex parte order improperly obtained - Whether order nullity - Whether order should be set aside for failure to notify affected party - Whether failure to provide full and frank disclosure to court - Voluntary Purchasing Group Inc v Insurco International Ltd [1995] 2 ILRM 145, Adams v DPP [2001] 2 ILRM 401 and Adam v Minister for Justice [2001] 3 IR 53 applied; Isaacs v Robertson [1985] AC 97, St George's Healthcare NHS Trust v S [1999] Fam. 26, DK v Crowley [2002] 2 IR 744 followed; Bambrick v Cobley [2005] IEHC 43, (Unrep, Clarke J, 25/2/2005) distinguished - Rules of the Superior Courts, 1986 (SI 15/1986), O 52, r 3 - Declaration granted (2006/4427P - Laffoy J - 25/4/2008) [2008] IEHC 104

Fitzpatrick v K(F)

Facts: The first defendant from the Democratic Republic of the Congo was a patient at a Maternity Hospital and gave birth to a child. Thereafter, she required a blood transfusion but would not accept it on account of her being a Jehovah's Witness. The defendant was transfused following a court order obtained ex parte, where it was asserted that the defendant was non compos mentis. The issue arose as to whether the ex parte order was in breach of her constitutional rights, pursuant to Articles 40.3, 40.1, 44 and Articles 8 and 9ECHR or whether she had lacked capacity to refuse the transfusion. Evidence was tendered of her lack of capacity at critical points. The defendant counterclaimed that she was entitled to an award of damages for assault, trespass to the person and breach of rights.

Held by Laffoy J. that the defendant had lacked the capacity to refuse the transfusion. No balancing of rights arose. The defendant could not invoke constitutional or ECHR rights in this regard. The plaintiffs acted lawfully in sedating and transfusing the plaintiff. The defendants counterclaim would be dismissed. Guidance notes were provided by the Court as to future similar proceedings.

Reporter: E.F

RSC O.60 r2

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 41

CONSTITUTION ART 42.5

CONSTITUTION ART 44.2.1

FITZPATRICK & RYAN v K (F) & AG 2007 2 IR 406

RSC O.52 r3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CONSTITUTION ART 40.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 9

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

RYAN v AG 1965 IR 294

A WARD OF COURT (WITHHOLDING MEDICAL TREATMENT) (NO 2), IN RE 1996 2 IR 79

MEDICAL COUNCIL GUIDE TO ETHICAL CONDUCT & BEHAVIOUR 6TH ED 2004 PARA 17.1

MEDICAL COUNCIL GUIDE TO ETHICAL CONDUCT & BEHAVIOUR 6TH ED 2004 PARA 18.4

CONSTITUTION ART 44

CONSTITUTION 1ST AMDT (US)

PAUL v WATCH TOWER BIBLE & TRACT SOCIETY OF NEW YORK INC 819 F 2D 875

M (J) v BOARD OF MANAGEMENT OF ST VINCENTS HOSPITAL & GEOGHEGAN 2003 1 IR 321

LUNACY REGULATION (IRELAND) ACT 1871

CONSTITUTION ART 42

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

CONSTITUTION ART 40.3.3

CONSTITUTION ART 40.3

GEOGHEGAN v HARRIS 2000 3 IR 536

FITZPATRICK v WHITE UNREP SUPREME 15.11.2007 2007 IESC 51

MALETTE v SCHULMAN 1990 73 OR 2D 417

T (ADULT: REFUSAL OF MEDICAL TREATMENT), RE 1992 4 AER 649

E (H) v A HOSPITAL NHS TRUST 2003 2 FLR 408

C (ADULT: REFUSAL OF MEDICAL TREATMENT), RE 1994 1 AER 819

B (ADULT: REFUSAL OF MEDICAL TREATMENT), RE 2002 2 AER 449

B (M) (MEDICAL TREATMENT), RE 1997 2 FLR 426

ST GEORGE'S HEALTHCARE NHS TRUST v S; R v COLLINS & ORS EX PARTE S 1998 3 WLR 936

MENTAL HEALTH ACT 1983 (UK)

G v BORD UCHTALA 1980 IR 32

RSC O.19 r5

LAW REFORM COMMISSION CONSULTATION PAPER ON VULNERABLE ADULTS & THE LAW: CAPACITY (CP 37-2005) 2005

LAW REFORM COMMISSION REPORT ON VULNERABLE ADULTS & THE LAW (LRC 83-2006) 2006 82

LAW REFORM COMMISSION REPORT ON VULNERABLE ADULTS & THE LAW (LRC 83-2006) 2006 51

JUDICIAL STUDIES INSTITUTE JOURNAL 2007 7 2 141

APPLICATION OF THE PRESIDENT & DIRECTORS OF GEORGETOWN COLLEGE INC 1964 331 F 2D 1000

PROVINCIAL BANK OF IRELAND v MCKEEVER 1941 IR 471

NORWOOD HOSPITAL v MUNOZ 1991 564 NE 2D 1017

PUBLIC HEALTH TRUST OF DADE COUNTY v WONS 1989 541 SO 2D 96

RSC O.52 r2

VOLUNTARY PURCHASING GROUP v INSURCO LTD 1995 2 ILRM 145

FOREIGN TRIBUNALS EVIDENCE ACT 1856 S1

RSC O.39 r33

RSC O.39 r34

ADAMS v DPP & ORS 2001 2 ILRM 401 2000/1/52

LARCENY ACT 1915

EXTRADITION ACT 1965 S39

RSC O.12 r56

ISAACS v ROBERTSON 1985 AC 97

ADAM v MIN JUSTICE 2001 3 IR 53

KELLY IRISH CONSTITUTION 4ED 2003 640

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

K (D) v CROWLEY & ORS 2002 2 IR 744 2001/15/4309

DOMESTIC VIOLENCE ACT 1996 S4(3)

WARD OF COURT, RE 1996 2 IR 79

PRACTICE DIRECTION (DECLARATORY PROCEEDINGS: INCAPACITATED ADULTS) 2001 1 WLR 325

BAMBRICK v COBLEY 2006 1 ILRM 81 2005/3/573 2005 IEHC 43

OSAYANDE & LOBE v MIN JUSTICE 2003 1 IR 1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

BYRNE v RYAN UNREP KELLY 20.6.2007 2007 IEHC 207

1 Miss Justice Laffoydelivered on the 25th day of April, 2008.

I. The Proceedings

The parties

2 The first plaintiff is the Master of the Coombe Women's Hospital (the Hospital) and the second plaintiff is the Secretary/Manager of the Hospital. The Master and the second plaintiff sue in such respective capacities.

3 The first defendant, who will be referred to as Ms. K, an African woman from the Democratic Republic of Congo (DRC), aged 23 years of age at the time, was a patient of the Hospital on 21 ^st September, 2006. At 9.46 a.m. on that day she gave birth to a baby boy. Shortly thereafter she suffered a massive post partum haemorrhage resulting in cardiovascular collapse. As part of the resuscitation procedures when O Negative blood, which is stored in the delivery suite fridge for emergencies, was being prepared for immediate transfusion, the medical personnelpresent were told that Ms. K would not take blood because she was a Jehovah's Witness.

4 The second defendant, the Attorney General, was joined in these proceedings because it was anticipated by the plaintiffs that questions as to the interpretation of the Constitution would arise in the proceedings, and that the plaintiffs would be required to serve notice on him by virtue of O. 60, r. 2 of the Rules of the Superior Courts, 1986 (the Rules). It is not clear to me, however, that the court directed the service of such notice.

Novelty of the core issue

5 Apparently, this is the first case in which an Irish court has been asked to decide the core issue which underlies these proceedings. It is whether and, if so, in what circumstances, a court may intervene in the case of a patient, who is an adult and is not non compos mentis, who has refused medical treatment, and by order authorise the hospital and its personnel in which he or she is a patient to administer such treatment to the patient. The issue arises in circumstances in which Ms. K was transfused in the Hospital on the afternoon of 21 ^st September, 2006 on the authority of an order of this Court (the ex parte order) granted on an ex parte application made by the plaintiffs.

6 This judgment follows a plenary hearing which lasted 37 days. It is necessary, because of the unusual nature of the process and the range of issues raised at the hearing by the parties, to outline the process to date in some detail, although ultimately the outcome of the proceedings largely turns on questions of fact.

Ex parte application

7 In order to put the ex parte application in context, it is necessary to elaborate on the essential facts. The evidence will be considered in greater detail later.

8 As I have stated, the emergency occurred shortly before 10 a.m. on 21 ^st September, 2006. The immediate concern of the medical personnel was to resuscitate and stabilise Ms. K. That process continued for approximately one and a half hours, during which Ms. K persisted in her refusal to accept a blood transfusion. The medical personnel treating Ms. K. were concerned that she would die without a blood transfusion. The Master, who is the most senior obstetrician in the Hospital and has ultimate responsibility for the patients being treated there, was called to the delivery suite where he arrived at about 11.30 a.m. I think it is fair to record that the Master accepted full responsibility for the crucial decisions which were subsequently made in relation to Ms. K's treatment, the decision to apply to the High Court and the decision to transfuse Ms. K on the authority of the High Court Order.

9 Having examined Ms. K and reviewed her management up to that time, and having considered what products, procedures and therapies were...