North Western Health Board -v- H.W. & C.W., [2001] IESC 90 (2001)

Docket Number:321/00
Party Name:North Western Health Board, H.W. & C.W.
Judge:Denham J. / Murphy J. / Murray J. / Keane C.J. / Hardiman J.



Keane C.J.

Denham J. 321/00

Murphy J.

Murray J.

Hardiman J.




Judgment of The Hon. Mrs. Justice Susan Denham delivered on the 8th day of November, 2001.

1. Appeal

This is an appeal by the North Western Health Board, hereinafter referred to as the plaintiff, from a judgment and order of the High Court (McCracken J.) delivered on 27th October, 2000. H.W. and C.W., hereinafter referred to as the defendants, are the parents of a baby boy, J.W., born in 2000. The High Court ordered that the plaintiff's motion for an order permitting the plaintiff to carry out the PKU test on J.W., notwithstanding the refusal of his parents, or restraining the defendants, their servants or agents from impeding the carrying out by or on behalf of the plaintiff of the PKU test, be refused.

2. The Background

The background to this case was described by the learned High Court judge. He stated:"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 and 120 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.

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.

1. Phenylketonuria. 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 1 in 4,500 in this country.

2. Homocystinuria. 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.

3. Hypothyroidism. 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.

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.

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. This 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.

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.'"

3. The Facts

The facts are not in issue in this case, they were set out by the learned High Court judge as follows:"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 test substance is used which can be obtained by non-invasive measures. This means in detail: we are prepared to supply the North Western Health 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.'

It is accepted that at this stage there is no necessity for a screening in relation to 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.In this case the plaintiffs are claiming certain declarations and injunctions, namely:

'1. A declaration that it is in the best interest 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 defendants, 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). . . '

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.

It is not disputed by the defendants that the court has jurisdiction in this matter pursuant to section 9 of the Courts (Supplemental Provisions) Act, 1961 but what is at issue is the extent of that jurisdiction. The plaintiffs for their part rely on the provisions of the Child Care Act, 1991 and in particular on section 3. . .

The plaintiffs also point to the extended powers given to a health board in relation to care orders and supervision orders, although they are not bringing these proceedings based on those provisions. . ."

4. The Judgment of the High Court

The conclusions of the learned High Court judge were as follows:

I have already quoted the provisions of section 3 of the Child Care Act, 1991, which undoubtedly imposes an obligation on health boards to promote the welfare of children in its area 'who were not receiving adequate care and protection'. In this regard, the welfare of the child must be the first and paramount consideration. I must, of course, in the absence of any constitutional challenge to this section, assume that it is constitutional, and accordingly it must be construed in accordance with the provisions of the Constitution. It should be noted that the Act is primarily concerned with situations where, for a child's welfare, it is

necessary that the child be taken under the care of some institution other than the family. In accordance with the presumption of constitutionality within which these provisions, must come, it must relate to exceptional cases where there has been a failure by the parents for physical or moral reasons. The Child Care Act simply provides a mechanism whereby the State undertakes its obligations under Article 42.5. Quite clearly the welfare of the child is not the only matter to be considered under s. 3 of the Act, and the rights of the parents and the position of the family unit is clearly both recognised and emphasised in sub-section 2(b) and (c) of that section.

Article 41.1 places the family in a very special position as being the natural primary and fundamental unit group of society. It also provides that the family possess rights which are antecedent and superior to all positive law. It is indeed probably the provision in the Constitution which comes nearest to accepting that there is a natural law in the theological sense. There have been a number of cases which have spoken of a hierarchy of rights under the Constitution, but the wording of Article 41.1 certainly would appear to place the rights of the family and therefore presumably the rights of the parents in relation to their children, very high up in this hierarchy. In effect, in the present case, I am being asked to balance those rights against the rights of Paul as an individual, and the plaintiff argues that I should do this by seeking to ascertain what is in the...

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