North Western Health Board v H.W.

• Jurisdiction: Ireland
• Judge: Keane C.J.,Justice Susan Denham,Justice Francis D Murphy,Murray, J.,Hardiman J.
• Judgment Date: 08 November 2001
• Neutral Citation: [2001] IESC 90
• Court: Supreme Court
• Docket Number: [2000 No. 6348 P.; S.C. No. 321 of 2000]
• Date: 08 November 2001

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

BETWEEN

THE NORTH WESTERN HEALTH BOARD

Plaintiff/Appellant

and

H.W. AND C.W.

Defendants/Respondents

[2001] IESC 90

KEANE C.J.

DENHAM J.

MURPHY J.

MURRAY J.

HARDIMAN J.

321/00

THE SUPREME COURT

Synopsis:

CONSTITUTIONAL LAW

Children

Family law - Role of parents - Medical procedure - Role of the courts - Vaccination - Religion - PKU test - Responsibilities of Health Boards - Application for injunction - Whether Health Board entitled to injunction in order to carry out procedure - Whether failure by parents to vindicate personal rights of child - Whether administration of test in best interests of child - Courts (Supplemental Provisions) Act, 1961 - Child Care Act, 1991 section 3 - Bunreacht na hÉireann, 1937 articles 40.3.2°, 41.1, 42.5 (321/2000 - Supreme Court - 08/11/2001) - [2001] 3 IR 635

North-Western Health Board v W(H) and W(C)

Facts: 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. The plaintiff appealed to the Supreme Court.

Held by the Supreme Court (Keane CJ dissenting; Denham J, Murphy J, Murray J and Hardiman J agreeing) in dismissing the appeal. Keane CJ held that the defendants had refused to protect and vindicate, so far as practicable, the constitutional right of the child to be guarded against unnecessary and avoidable dangers to his health and welfare. Keane CJ would grant an order allowing the appeal and providing for the PKU test to be carried out on the child. Denham J held that the court should not intervene to order the test to be carried out. It had not been established that the defendants had failed in their duty towards their child. Once the plaintiff had fully informed the defendants about the tests, the plaintiff's responsibility and liability ceased. Mr. Justice Murphy held that if the State had an obligation in the present case to substitute its judgment for that of the parents numerous applications would be made to the Courts to overrule decisions made by caring but misguided parents. Mr. Justice Murray held that as unwise and disturbing the decision of the parents might be it was a decision which they had the liberty to take. There had not been such an abdication of responsibility that would justify substituting the State's view for that of the parents. Mr. Justice Hardiman held that the Constitution plainly accorded a primacy to the parent and this primacy gave rise to the presumption that the welfare of the child was to be found in the family exercising its authority as such.

Citations:

CHILD CARE ACT 1991 S3

CONSTITUTION ART 40.3.2

G V AN BORD UACHTALA 1980 IR 32

N (F) V MIN FOR EDUCATION 1997 1 IR 409

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

QUINN, STATE V RYAN 1965 IR 70

E, RE 1990 9 BMLR 1

W, RE 1992 4 AER 648

O, RE 1993 4 MED LR 272

B, RE 1981 1 WLR 1421

C, RE (HIV TEST) 1999 3 FCR 289

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

GUARDIANSHIP OF INFANTS ACT 1964 S3

SOUTHERN HEALTH BOARD V H (C) 1996 IR 219

C, RE (HIV TEST) 2000 1 WLR 2

T, RE 1997 1 AER 906

RYAN V AG 1965 IR 294

MESKILL V CIE 1973 IR 121

KELLY ON THE IRISH CONSTITUTION 3ED 1047

CONSTITUTION ART 42.5

H (J), RE 1985 IR 375

CONSTITUTION ART 42.1

CONSTITUTION ART 42

GOLDSTEIN MEDICAL CARE FOR THE CHILD AT RISK: ON STATE SUPERVISION OF PARENTAL AUTONOMY 86 YALE LAW JOURNAL 619

ART 26 REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995, IN RE 1995 1 IR 1

EVE, RE 1984 31 DLR 1

SECRETARY, DEPARTMENT OF HEALTH AND COMMUNITY SERVICES V B (JW) & B (SN) 1991–1992 CLR 218

L & M (G) V M (M) 1995 MED LR 3

HEALTH ACT 1953 S4

CHILD CARE ACT 1991 S16

CHILD CARE ACT 1991 S17

CHILD CARE ACT 1991 S18(1)

CHILD CARE ACT 1991 S18(3)

CHILD CARE ACT 1991 S18(4)

CHILD CARE ACT 1991 S19

CHILD CARE ACT 1991 S19(4)

CHILD CARE ACT 1991 S19(5)

CONSTITUTION ART 40.3

CONSTITUTION ART 41.1

KELLY ON THE IRISH CONSTITUTION 3ED 991

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 12

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT 1900

W (P) V W (A) UNREP ELLIS 21.4.80 1980 10/1862

ADOPTION ACT 1974

ARTICLE 26 OF THE CONSTITUTION AND THE ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656

CONSTITUTION ART 40.3.1

MORGAN V DILLON 1724 9 MOD R 135

COURTS OF JUSTICE ACT 1924

COURTS OF JUSTICE ACT 1936

CONSTITUTION ART 41.1.2

BUCK V BELL 1927 274 US 200

WHITE & WENDELL HOLMES LAW AND THE INNER SELF 407

D, RE 1976 FAM 185

SECONDARY, DEPARTMENT OF HEALTH & COMMUNITY SERVICES V JWB & SNB (MARIONS CASE) 1992 175 CLR 218

KENNEDY PATIENTS DOCTORS AND HUMAN RIGHTS

CHILDRENS ACT 1989

HEALTH ACT 1953 S4(1)

HEALTH ACT 1953 S4(2)

CHILD CARE ACT 1991 S3(4)

SINNOTT V MIN FOR EDUCATION UNREP SUPREME 12.7.2001

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S9

CHILD CARE ACT 1991 S3(2)(B)

CHILD CARE ACT 1991 S3(2)(C)

HANRAHAN V MERCK SHARP 1988 ILRM 629

ADOPTION BILL 1987, RE 1989 IR 656

A, RE (NO 2) 1996 2 IR 79

CHILD CARE ACT 1991 S18

NICOLAOU, STATE V BORD UCHTALA 1966 IR 567

N (F) V MIN FOR EDUCATION 1995 1 IR 409

G V AN BORD UCHTALA 1980 IR 32

C, STATE V FRAWLEY

UNITED NATIONS UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948 ART 16(3)

CONSTITUTION OF GERMANY 1949 ART 6

CONSTITUTION OF GREECE 1975 ART 21

MOORE V CITY OF EAST CLEAVELAND 1977 431 US 494

MEYER V NEBRASKA 1923 262 US 390

PIERCE V SOCIETY OF SISTERS 1925 268 US 510

WEBB V IRELAND 1988 IR 353

MCGEE V AG 1973 IR 284

CONSTITUTION ART 40.3(i)

CONSTITUTION ART 40.3(ii)

HEALTH (MENTAL TREATMENT) ACT 1981 S44

HEALTH (MENTAL TREATMENT) ACT 1981 S44(2)

VACCINATION ACTS 1858–1868

HEALTH ACT 1947 S21

HEALTH ACT 1947 S22

HEALTH ACT 1947 S23

HEALTH ACT 1947 S24

HEALTH ACT 1947 S25

HEALTH ACT 1947 S26

HEALTH ACT 1947 S27

HEALTH ACT 1947 S28

HEALTH BILL 1952

CROWLEY V IRELAND 1980 IR 102

HEALTH (FLUORIDATION OF WATER SUPPLIES) ACT 1960

L V L 1992 2 IR 77

RUSSELL V FANNING 1998 IR 505

H (P) V MURPHY 1987 IR 621

MESKELL V CIE 1973 IR 121

CONWAY V IRISH NATIONAL TEACHERS ORGANISATION (INTO) 1991 1 IR 305

1 8th day of November, 2001 by Keane C.J.

Keane C.J.

Introduction

2 The question posed by this case in the High Court and again in this court can be posed in relatively simple terms. Can the defendants, who are the parents of a 14 month old child, be required by an order of the court to permit the appellants to conduct a medical test - known as the PKU test - on the child? It has, however, involved the court in an anxious consideration of issues the significance of which transcends the facts in the instant case.

3 Those facts can be stated as follows. A test exists, known as the PKU test, which enables it to be ascertained whether a child, who may look healthy and well, is suffering from certain biochemical or metabolic disorders which can be extremely serious but are also treatable if identified at an early stage. The test is generally carried out on a new-born infant between 72 hours of age and 120 hours of age to be most effective. Blood is dropped on to a card - known as a Guthrie card - which is then sent to the Childrens" Hospital, Temple Street, Dublin where it is tested for four metabolic conditions and one endocrine condition. The four metabolic conditions are phenylketonuria, galactosaemia, homocystinuria and maple syrup urine disease. The endocrine condition is hypothyroidism. All the conditions in question cause either mental handicap or life threatening illness unless they are detected early.

4 The incidents in Ireland of phenylketonuria is one of the highest in the world: 1:4,500 infants suffer from it. In the case of galactosaemia the figure is approximately 1:30,000 (with 1: 700 amongst travellers) and in the case of homocystinuria 1: 49,000. Those disorders would, as a result, be regarded as not uncommon. Maple syrup urine disease has an incidence of 1: 110,000 and hypothyroidism a frequency of 1:200,300.

5 Of these conditions, maple syrup urine disease and galactosaemia become apparent within the first week or four to five days of the child's life. However, in the case of phenylketonuria, the symptoms may not be detected until a later stage: they may appear in the first two years of life but there are cases in which they are not identified until much later. In one instance in recent years, an eleven year old was detected for the first time. In the case of homocystinuria, the symptoms may not appear until the child is 2 to 2½ years of age, but again, it may not be possible to make the diagnosis until a later stage, ranging from 3 to 6 or 7 years of age. The symptoms of the very common condition of hypothyroidism can be subtle and not easily detected.

6 The risk to the child of having the heel test done is minimal. Even where the test is carried out badly and incorrectly, the worst that could occur is that the little lancet which is used might introduce infection in the skin or at worst in the bone. There is no indication that this has ever happened since the test was first adopted in Ireland in 1966.

7 In January 1998, a working group appointed by the Minister for Health...