North Western Health Board v H.W.

• Jurisdiction: Ireland
• Judge: Mr. Justice McCracken
• Judgment Date: 27 October 2000
• Neutral Citation: [2000] IEHC 199
• Court: High Court
• Docket Number: No. 6348P/2000
• Date: 27 October 2000

NORTH WESTERN HEALTH BOARD v. W (H) & W (C)

Between

THE NORTH WESTERN HEALTH BOARD

PLAINTIFF

AND

H W AND C W

DEPENDANTS

[2000] IEHC 199

No. 6348P/2000

THE HIGH COURT

Synopsis:

Children

Parental rights; best interests of the child; powers and duties of State to act for the benefit of children; plaintiff seeks declarations and injunctions; P.K.U. test normally carried out on new-born infants to screen for presence of metabolic conditions; test not provided for by legislation; defendant-parents refused to allow test to be carried out on their child; whether objective medical benefit to child overrides rights of parents to decide; s. 9 Courts (Supplemental Provisions) Act, 1961; s. 3 Child Care Act, 1991; Articles 40.3, 41.1, 42 of the Constitution.

Held: Relief refused.

North Western Health Board v. W - High Court: McCracken J. - 27/04/2000 - [2001] 3 IR 622

The plaintiff instituted proceedings in order to carry out a medical test on a child. The parents (the defendants) of the child objected to the procedure, which in this instance involved a blood test, on the basis of religious belief. The parents indicated that they would not object to other types of samples being obtained. The plaintiff sought a number of injunctions in order to carry out the procedure in question. The plaintiff relied upon provisions contained in the Child Care Act, 1991 and in the Constitution. Mr. Justice McCracken was satisfied that the present case was not an exceptional case which would justify overriding the rights of family against those of the individual child. The present case did not justify the intervention sought and accordingly the relief sought by the plaintiff would be refused. If the State believed that the refusal of parents in such instances was unlawful then appropriate legislation should be introduced.

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S9

CHILD CARE ACT 1991 S3

CONSTITUTION ART 40.3.2

CONSTITUTION ART 41.1

CONSTITUTION ART 42.1

CONSTITUTION ART 42.5

RYAN V AG 1965 IR 294

HANRAHAN V MERCK SHARPE & DOHME 1988 ILRM 629

M (F) V MIN FOR EDUCATION 1995 ILRM 927

G (D) V EASTERN HEALTH BOARD 1998 1 ILRM 241

CONSTITUTION ART 42

ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656

CHILD CARE ACT 1991 S3(2)(b)

CHILD CARE ACT 1991 S3(2)(c)

Judgment of

Mr. Justice McCracken

delivered the 27th day of October 2000

Background

1 There is a screening test, commonly known as the PKU test, which has been available for over thirty years for testing for the presence of four metabolic conditions and one endocrine condition in children. This test is normally carried out on new-born infants between 72 hours and120 hours after birth. It is in effect a blood test, the blood being extracted from the infant by puncturing the skin, usually in the heel of the infant, with a lancet which has a guard which ensures it can only penetrate to a limited extent, and then extracting some drops of blood, usually by pressure on the heel close to where the lancet was inserted. The resulting drops of blood are collected on what is called a Guthrie card, and is sent to Temple Street Hospital in Dublin where it is tested for these conditions.

2 In the present case we are only concerned at this stage with the screening for three of these conditions which may be referred to briefly.

3 1Phenylketonuria, This is a condition which may cause severe mental handicap, but which may be treated primarily by diet throughout the lifetime of the sufferer. It is a relatively common disorder and has an incidence of I in 4,500 in this country.

4 2Homocystinuria, This is a metabolic condition which may cause intercranial bleeding or strokes, and also can cause dislocation of the lenses of the eye and can result in severe mental handicap. This again can be treated by diet control for life and the incidence in this country is 1 in 49,000.

5 3Hypothyroidism, This condition results from the failure of the thyroid gland to produce thyroxine and again results in mental handicap. It can be treated and controlled by medication and its incidence in Ireland is 1 in 3,500.

6 It is common to all these conditions that they are treatable, but once the damage has been caused by the condition it is usually irreversible, and thus it is medically considered of great importance to have the condition diagnosed at as early a stage as possible.

7 This screening has been carried out for over thirty years. Originally, the screening was only for Phenylketonuria, and this was extended to the other conditions at various times up to the year 1979. The screening is not provided for by legislation, but is a service which is being provided by the Department of Health and the local health boards for the benefit of the community in general. There is no provision or regulation making it mandatory, but in reality it is now carried out more or less as a matter of course, and the Department of Health records would indicate that there are only about six cases per year in which parents refuse to have the test carried out.

8 In September 1990 a working group was set up by the then Minister for Health to report on metabolic disorders, which report recommended certain standard procedures with an aim or objective of 100% coverage of infants in the state. Under the heading "responsibility of parents" the report recommended:-

"In the case of parents who refuse to allow their infant to be screened, the responsibility for the possible adverse consequences of their decision shifts, to them.

The parents should be requested to signify their refusal in writing."

The facts of this case

9 The Defendants are the parents of a baby who I shall call Paul (not his real name) who was born earlier this year. They are resident in the functional area of the Plaintiff health board. Paul was in fact born at home, and shortly after his birth the nurse employed by the Plaintiff sought to have the PKU test carried out on Paul. The Defendants refused to allow the test to be carried out, and after some correspondence wrote to the Plaintiff's Solicitors in the following terms:-

"As you know, the PKU test is a test which can be carried out on different substances, such as urine, blood and hair samples. Our decision regards our son (Paul) is as follows: we have no objection against the PKU test being carried out, provided a Testsubstance is used which can be obtained by non invasive measures. This means in detail: we are prepared to supply the North Western Board with hair and urine samples for carrying out the PKU test for our son (Paul). We refuse to allow blood samples being taken, as these can only be obtained by invasive measures, such as puncturing a blood vessel. It is our strong religious belief, that nobody is allowed to injure anybody else. We hope that through this clarification, court proceedings can be averted."

10 It is accepted that at this stage there is no necessity for a screening in relation of two of the conditions normally covered by the tests, as they would already have become apparent had they been present. However, the Plaintiff emphasises that the remaining three conditions which I already have described could still be present, and if identified at this stage could be treated successfully.

11 In this case the Plaintiff's are claiming certain declarations and injunctions, namely:-

"1 A declaration that it is in the best interests of (Paul) that a PKU test be carried out on him

2 A declaration that the refusal of the Defendants to consent to the carrying out of a PKU test on (Paul) is a failure by them to vindicate the personal rights of (Paul)

3 A declaration that the Plaintiff be permitted to carry out the PKU test on (Paul), subject to such conditions as might be directed, and notwithstanding the refusal of his parents, the Defendants herein, to consent thereto

4 An injunction (and if necessary an interlocutory injunction) restraining the Defendant's their servants or agents from impeding the execution by the Plaintiff of the aforesaid PKU test

5 A mandatory injunction (and if necessary a mandatory interlocutory injunction) requiring the Defendants to furnish their consent to the execution of the aforesaid PKU test on the said (Paul)

6 Such further and other relief as to this honourable court shall deem meet."

Relevant statutory and constitutional provisions

12 This case raises very serious constitutional issues both with regard to the relationship between parents and their child and with regard to the powers and duties of the State to act for the benefit of children.

13 It is not disputed by the Defendants that the Court has jurisdiction in this matter pursuant to section 9 of the Courts (Supplemental Provisions) Act1961, but what is at issue is the extent of that jurisdiction. The Plaintiff's for their part rely on the provisions of the Child Care Act1991, and in particular on section 3, the relevant provisions of which are as follows:-

"(1) It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection."

14 (2) In the performance of this function, a health board shall:-

15 (a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;

16 (b) having regard to the rights and duties of parents, whether under the Constitution or otherwise:-

17 (i) regard the welfare of the child as the first and paramount consideration and

18 (ii) in so far is practicable give due consideration having regard to his age and understanding, to the wishes of the child; and

19 (c) have regard to the principle that it is generally in the best interest of a child to be brought up in his own family"

20 The Plaintiff's also point to the...