P.P -v- Health Service Executive, [2014] IEHC 622 (2014)

Docket Number:2014 10792 P
Party Name:P.P, Health Service Executive
 
FREE EXCERPT

THE HIGH COURT

Kearns P.

Baker J.

Costello J.[2014 No. 10792P]

BETWEEN

P. P.PLAINTIFFAND

HEALTH SERVICE EXECUTIVEDEFENDANT

JUDGMENT of the Court delivered on the 26th December, 2014

The facts of this tragic case may be simply stated. The plaintiff resides outside Dublin and is the father of N.P. who was born on the 10th July, 1988 and who died on 3 December, 2014 aged 26 years of age. She was pregnant and her pregnancy was at the gestational age of 15 weeks at the time of her death. N.P. had two children who are now aged six and four years respectively. Both resided with her outside Dublin. She was not married but at the time of her death was engaged to M.J., the father of her unborn child.

On the 27th November, 2014, N.P. was admitted to a hospital outside Dublin complaining of persistent headaches and nausea. On the night of the 29th November, 2014, N.P. sustained a fall while in hospital and was later found to be unresponsive and was urgently incubated. Later that day, N.P. was transferred into the care of a Dublin hospital where, on the 2nd December, 2014, at a meeting with medical clinicians in that hospital, the plaintiff was advised that his daughter’s medical condition was such that there should not be an attempt at resuscitation in the event of her suffering cardiac arrest. The condition of N.P. was the subject of ongoing review by clinicians in the Dublin hospital in the course of the period from her admission up to the 8th December, 2014 when she was discharged back into the care of the hospital outside Dublin. On the 3rd December, 2014 in Dublin, a medical clinical determination had been made that N.P. had suffered brain stem death. The plaintiff was advised of this fact on the 3rd December, 2014.

Since the 8th December, 2014 the said N.P. has been under the medical care of the clinical staff at the hospital outside Dublin. She is in the intensive care unit of the hospital where she is being supported by mechanical ventilation and being fed by a nasogastric tube. She has been maintained on very heavy doses of medication for a number of conditions including pneumonia, fungal infections, high blood pressure, fluid build-up and fluctuations in the production of urine. She has been receiving physiotherapy twice daily for secretions from her chest and her joints and muscles are being cared for. The plaintiff was advised by the medical staff at the hospital that it was intended to maintain this regime of treatment for the duration of the pregnancy of N.P. On the 17th December, 2014 a tracheostomy operation was carried out on N.P. to facilitate the continuation of maternal organ supportive measures in an attempt to attain foetal viability.

The plaintiff believes that these measures are unreasonable and should be discontinued. The endorsement of claim in the plenary summons states the plaintiff’s belief that prolonged somatic support measures are experimental in nature and that they have no proper basis in medical science or ethical principle. He thus believes that prolonged somatic support of N.P. is unlawful and/or should be discontinued.

The matter first came before the High Court on Monday, 15th December, 2014 when a discussion as to the appropriate method of progressing the court application was discussed between me, as President of the High Court, and Mr. John Rogers, senior counsel for N.P.’s father. At that stage the proposal was that N.P. be taken into wardship and that P.P., as father of N.P., be appointed committee of the person and estate of the said N.P. The Court agreed to “fast track” a wardship application, making same returnable for Tuesday, 23rd December, 2014. The Court made an order on the 15th December, 2014 restricting publication of any information about the case which would identify the parties, including the names of any of the hospitals involved in the care of N.P. That order continues in effect.

On giving the matter further consideration, the plaintiff’s legal advisors took the view that a preferable procedure in the circumstances of this case was to bring plenary proceedings in which the Court could be asked to exercise its inherent jurisdiction. The present proceedings accordingly issued on the 19th day of December, 2014.

A “case directions” hearing took place on Monday, 22nd December, 2014 where the following matters were agreed:-

(i) That a full hearing of the case would take place on Tuesday, 23rd December, 2014 as an exercise by the High Court of its inherent jurisdiction;

(ii) That any issue as to wardship would remain to be considered after the plaintiff’s application had been determined;

(iii) That the plaintiff, P.P. and the defendants in the plenary proceedings would be entitled to advance such evidence and submissions as they considered appropriate.

(iv) That the Court would allow and hear representations on behalf of the unborn child of N.P.;

(v) That the Court would receive and hear representations on behalf of N.P.;

At the conclusion of the directions hearing, the President indicated that, in view of the importance of the issue raised in the case, the High Court would sit as a divisional court to hear the plaintiff’s application, the additional members of the court for that purpose being Baker J. and Costello J.

EVIDENCE HEARD BY THE COURT ON THE 23rd DECEMBER

Mr. P.P. gave evidence that he was the father of N.P. and that she was living with him for the previous two years. She had two children, a girl aged six and a boy aged four. P.P. had been married but his wife died in June, 2007. He described how, following the commencement of his daughter’s pregnancy, she started to suffer from headaches and vomiting and attended a local hospital on the 27th November, 2014. When he telephoned the hospital to find out how she was getting on she seemed to be doing fine but was then transferred to a Dublin hospital. When he arrived to the Dublin hospital on the 29th he was told that his daughter had died. He was taken to see her remains in the ICU Unit and noted she was on a life support system. He was told by the medical staff that, for legal reasons, they felt constrained to put his daughter on life-support because her unborn child still had a heart beat. He found this very stressful. On each occasion since then when he has seen her, her appearance appears to be deteriorating and her body has become very swollen. He was aware that an operation on his daughter’s head had been carried out in the Dublin hospital to reduce the pressure but had been informed by the treating neurosurgeon that his daughter was dead and there was nothing he could do for her. He had discussed the situation with his sister-in-law who lived next door, who was virtually a mother to his daughter, and also with M.J., the father of the unborn child. All had agreed that the life-support machine should be turned off, both because his daughter was dead and the chances of the unborn child surviving were minimal. He wanted her to have a dignified death and be put to rest. His daughter’s two children are aware that their mother is sick and believe she is being looked after by the nurses “until the angels appear”. His granddaughter was very distressed by the appearance of her mother when she last saw her.

In cross-examination Mr. P. agreed that his daughter had never executed any living will or advance direction as to what might happen if she were to sustain serious illness or become incapable of communicating her wishes. He was aware she kept a Facebook page and was aware she had posted on that page a picture of herself and her partner, and also a photograph of her two children. He had also heard that she had a Facebook page showing an image of the scan of the unborn. He agreed that this latter fact suggested she was proud of this new pregnancy. She had no prior illness and would have been intent, had she not become ill, to carry her baby to full term.

M.J. then gave evidence to say his relationship with N.P. had been going on for four or five years. He confirmed he was the father of the unborn and that he supported the plaintiff’s application that the ongoing somatic support for N.P. be withdrawn. In cross-examination he confirmed that he and N.P. had discussed different names for the new child. His views on what should be done for his partner were influenced by the information he had received to the effect that even if the current measures were continued there was no reasonable prospect that the unborn child would survive.

Dr Brian Marsh is a consultant in intensive care medicine in the Mater Hospital. This form of specialised medicine deals primarily with the care of patients who require a higher level of intensive care management. He had extensive experience in this area having qualified in Ireland and having later trained in Australia prior to his return to Ireland. He explained the phenomenon of brain death and the tests deployed for brain stem testing. This particular patient had a cyst in her brain which was producing symptoms and which caused her to sustain a fall on the 29th November. Thereafter at 17.20 hours on the 3rd December an angiogram confirmed that there was no brain stem activity or blood flow through the brain at that point. He said this test confirmed she was brain dead. He believed the mechanism by which brain death had taken place had evolved over the preceding number of days. Thereafter breathing activity was achieved by means of a ventilator, but there was and is no intracranial circulation of blood. He told the Court that brain tissue has a very short period of ability to survive without oxygen. That organ itself ultimately undergoes a process of liquefaction. Having seen her the previous evening, he told the Court that the mother’s condition currently is one of requiring considerable input from the medical and nursing team. She has problems with her blood pressure management and has ongoing infection. She is also in need of ongoing hormonal therapies. Her appearance is...

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