Irish Hospital v H (R) & McG (J)

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 11 January 2012
• Neutral Citation: [2012] IEHC 2
• Court: High Court
• Date: 11 January 2012

[2012] IEHC 2

THE HIGH COURT

[WOC 6680]

Irish Hospital v H (R) & Ors

WARDS OF COURT

IN THE MATTER OF SR (A MINOR)

BETWEEN

AN IRISH HOSPITAL

APPLICANT

AND

R. H. AND J. McG.

RESPONDENTS

AND

SR

NOTICE PARTY

R v ARTHUR 1981 12 BMLR 1

B (A MINOR), IN RE 1990 3 AER 927

C (A MINOR), IN RE 1989 2 AER 782

J (A MINOR), IN RE 1990 3 AER 930

SUPERINTENDENT OF FAMILY & CHILD SERVICES & DAWSON 1983 145 DLR (3ED) 610

J (A MINOR), IN RE 1992 4 AER 614

C (A BABY), IN RE 1996 2 FLR 43 1996 32 BMLR 44

C (A MINOR), IN RE 1997 40 BMLR 31

T (A MINOR), IN RE 1997 1 AER 906

Z (A MINOR), IN RE 1995 4 AER 961

A WARD OF COURT, IN RE 1995 2 ILRM 401

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S9(1)

WARDS OF COURT

Jurisdiction

Child - Medical treatment - Irreversible brain damage -No prospect of recovery - Longevity and quality of life - Inherent pain and suffering in proposed treatment - Views of parents and doctors - Nature of medical treatment to be administered to ward - Presumption in favour of life saving treatment - Exceptional circumstances - Whether life saving treatment should be withheld - Whether exceptional circumstances - Whether deliberate steps should be taken artificially to prolong life whatever pain and suffering caused to child - Test to be applied in assessing course to be adopted in best interests of child -Best interests of child to be determined subjectively - In re a Ward of Court (Withholding Medical Treatment) (No 2) [1996] 2 IR 79 applied; Re J. (a minor) (wardship: medical treatment) [1990] 3 All ER 930, In Re B (A Minor) (wardship: medical treatment) [1981] 1 WLR 1421, Re J (a minor) (wardship: medical treatment) [1991] Fam 33, Re T (a minor) (wardship: a medical treatment) [1997] 1 WLR 242 and Re Superintendent of Family and Child Services v Dawson (1983) 145 DLR (3d) 610 followed; Re C (a minor) [1998] 1 FCR 1considered - Courts (Supplemental Provisions) Act 1961 (No 39), s 9 - Do not resuscitate order granted (WOC6680 - Kearns P - 11/1/2012) [2012] IEHC 2

Re R(S): An Irish Hospital v H(R)

1 JUDGMENT of Kearns P. delivered the 11th day of January, 2012.

2 In this case the applicant hospital seeks directions from the Court as to the proper care and treatment of SR, a minor and ward of court, having regard to his welfare and best interests. The applicant also seeks a particular order from the Court by way of direction that SR should not be resuscitated in the event of an acute deterioration requiring invasive treatment occurs in his present medical condition and where medical advice dictates that such a course is in the best interests of the child.

BACKGROUND FACTS

3 SR was born on the 25 ^th November, 2005 and is now six years old. On the 21 ^st of August, 2007, when SR was one year and ten months old, he suffered a near-drowning incident which resulted in prolonged cardiac arrest and extensive irreversible brain damage. SR has resided in a children's Home with specialised facilities since 21 ^st January, 2008. Dr. J. B., Consultant Paediatrician, is the lead clinician responsible for his care.

4 SR's ongoing irreversible medical condition is a fundamental consideration in this application and I will therefore deal with his medical history in some detail.

5 As a result of the near-drowning episode SR developed severe spastic quadriplegic cerebral palsy involving all four limbs with increased tone and stiffness of the limbs. He is cortically blind and has no voluntary movement of his limbs. His legs are extended and his arms are in a flexed, or decorticate, position. His limbs are very stiff resulting in difficulty in moving his arms and legs for everyday activities such as dressing and changing. He requires carers to move him regularly while in bed to prevent bedsores. He is incontinent and has no method of communication, although he does cry out at times. He appears to feel pain, for example when blood samples are taken. When he first moved to the Children's Home, SR experienced episodes of irritability at times. These episodes have reduced in frequency and SR is usually settled and relatively content. There are a number of possible causes for irritability, but it is likely that he experiences pain from muscle spasm associated with his high muscle tone. SR does appear to be soothed by contact with his parents.

6 SR developed seizures and the frequency and severity of the seizures has been reduced by the use of seizure medication however it is not possible to achieve complete seizure control. It is possible that SR's seizures may become worse at any point in time and it is likely that he will continue to require anti-seizure medication for life.

7 SR is completely dependent for all care needs. He requires two carers to move him when changing position or undertaking personal care, i.e. dressing. He is on a large number of medications which must be administered by a trained carer or parent via his jejunal feeding tube. He receives chest physiotherapy and passive stretching exercises by a physiotherapist daily. When unwell, he receives physiotherapy twice daily.

8 SR's ability to swallow was also affected by the brain damage and therefore he can no longer safely feed by mouth. In 2007, SR had a PEG feeding tube inserted and underwent a Nissens' Fundoplication, a procedure that aims to reduce the risk of gastro-oesophageal reflex disease and aspiration pneumonia. All nutrition and drugs had previously been administered to SR via this PEG feeding tube until the insertion of a jejunal feeding tube in November 2010.

9 SR has suffered from a number of lower respiratory tract infections or aspiration pneumonias since his transfer in January 2008 and it is likely that these occur because of his inability to safely swallow his oral secretions, causing aspiration of saliva and other upper airway secretions. The majority of the respiratory infections have been managed in the Children's Home with the administration of oral antibiotics, frequent suctioning, chest physiotherapy and oxygen as required.

10 SR has attended the applicant hospital as a 'day case' on 22 occasions and has required admission on twelve dates since January 2008. He was severely ill on his last admission to hospital on 8 ^th October, 2010, when he was admitted because of increased oxygen requirements and increased secretions and was found to have a lower respiratory tract infection. He was slow to recover and has required greatly increased levels of oxygen and intensive physiotherapy to keep his oxygen saturations within the normal range. During this admission, his feeding became a significant issue and it was not possible to re-establish enteral feeding. It was established that despite his Fundoplication, feed was still refluxing from his stomach to his airway which, due to his cerebral palsy, he was unable to protect and was resulting in ongoing respiratory distress.

11 Following advice from the surgical team an attempt was made to site a naso-jejunal tube from the nose to the small intestine. This procedure was the least invasive option and did not require a general anaesthetic. This procedure was attempted on 15 ^th October, 2010 but was unsuccessful. A barium study was attempted but was unsuccessful and on the 24 ^th October an attempt was made to pass a tube through his PEG feeding tube (a PEJ) under general anaesthetic but this was also unsuccessful. SR had a central access sited via his femoral vein and Total Parental Nutrition (TPN) has provided a short-term solution to his nutrition needs but this has many complications including sepsis and liver damage. A further attempt to perform a PEJ was performed on 27 ^th October, 2010 but this was also unsuccessful. On 3 ^rd November, 2010 an open surgical jejunostomy was sited and subsequently SR's feeds were re-established and he was discharged back to the Children's Home. This tube is a relatively small bore and the hope in the future would be to increase the size of this tube to increase volumes of feed given and decrease incidence of tube blockage.

12 Since SR's last admission to the applicant hospital he has required seven further visits to the Emergency Department of the hospital. On 20 ^th November, 2010, his jejunostomy tube was blocked and was unblocked by the surgical register. On 5 ^th December, 2010 SR was brought to the Emergency Department as he was thought to have gastroenteritis. He was reviewed by the Accident & Emergency team and was discharged. On 6 ^th December, 2010, his jejunostomy tube was noted to be blocked and leaking when a flush was attempted. The tube was replaced in the radiology department and SR was reviewed by the surgical team and the tube was replaced. On 13 ^th December, 2010 the jejunostomy tube was blocked and SR was reviewed by the urology team and the tube was replaced. On 17 ^th January, 2011 it was thought that there was an infection at the site of the jejunostomy tube and SR was seen by the medical and surgical teams and started on antibiotics. On 24 ^th January, 2011 the jejunostomy tube was found to be blocked and was replaced by the surgical team and radiologically confirmed.

13 Due to the irreversible nature of the brain damage suffered by SR in August 2007, he has no prospect of recovery and will not improve with time. His condition has deteriorated due to recurrent respiratory tract infections and he has developed chronic lung disease. As a consequence of his medical problems SR is at increased risk of respiratory and other infections. To date, when SR has been admitted to the applicant hospital he has received non-invasive respiratory support, intravenous antibiotics, oxygen, increased physiotherapy and he has stabilised with these therapies. SR now has a significant chronic illness and he may acutely deteriorate at any time. In the event of a severe deterioration in his condition...