P. P. v Health Service Executive

 
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[2014] IEHC 622

THE HIGH COURT

Kearns P.

Baker J.

Costello J.

[No. 10792P/2014]
P (P) v Health Service Executive

BETWEEN

P. P.
PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE
DEFENDANT

2014/10792P - Kearns Baker Costello - High - 26/12/2014 - 2014 48 14007 2014 IEHC 622

CONSTITUTION ART 40.3

CONSTITUTION ART 40.3.3

CONSTITUTION ART 40.3.1

AG v X 1992 1 IR 1

O'DONOVAN v AG 1961 IR 114

A WARD OF COURT (WITHHOLDING MEDICAL TREATMENT) (NO 2), IN RE 1996 2 IR 79 1995/14/3539

OFFENCES AGAINST THE PERSON ACT 1861 S58

AIREDALE NHS TRUST v BLAND 1993 AC 789 1993 2 WLR 316 1993 1 AER 821 1993 1 FLR 1026 1994 1 FCR 485 1993 4 MED LR 39 1993 12 BMLR 64 1993 FAM LAW 473 1993 143 NLJ 199

A (A MINOR), IN RE 1993 1 MED L REV 98

SHEIKH & CUSACK IN MATERNAL BRAIN DEATH, PREGNANCY & THE FOETUS: THE MEDICO-LEGAL IMPLICATIONS 2001 VOL 7 MEDICO-LEGAL JOURNAL OF IRELAND 75

FARRAGHER & ORS MATERNAL BRAIN DEATH - AN IRISH PERSPECTIVE 2005 VOL 174 NO 4 IRISH JOURNAL OF MEDICAL SCIENCE 55

COURTS (SUPPLEMENTAL PROVISIONS ACT) 1961

SR (A WARD OF COURT), IN RE 2012 1 IR 305 2012/19/5312 2012 IEHC 2

Family - Pregnancy - Pregnant woman suffering brain stem death - Unborn child - Woman being sustained artificially for course of pregnancy - Whether father of woman could seek discontinuance of treatment to sustain notwithstanding constitutional right to life of unborn child - Article 40.3.3 of constitution

1

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

2

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 10 th 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.

3

On the 27 th November, 2014, N.P. was admitted to a hospital outside Dublin complaining of persistent headaches and nausea. On the night of the 29 th 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 2 nd 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 8 th December, 2014 when she was discharged back into the care of the hospital outside Dublin. On the 3 rd 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 3 rd December, 2014.

4

Since the 8 th 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 17 th 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.

5

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.

6

The matter first came before the High Court on Monday, 15 th 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, 23 rd December, 2014. The Court made an order on the 15 th 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.

7

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 19 th day of December, 2014.

8

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

9

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

10

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

11

(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.

12

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

13

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

14

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 23 rd DECEMBER
15

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 27 th 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 29 th 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.

16

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.

17

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...

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