Re a Ward of Court (withholding medical treatment) (No. 2)

CourtSupreme Court
Judgment Date01 January 1996
Date01 January 1996
Docket Number[S.C. Nos. 167, 171, 175 and 177 of 1995]

High Court

Supreme Court

[S.C. Nos. 167, 171, 175 and 177 of 1995]
In re a Ward of Court (withholding medical treatment) (No. 2)
In the matter of A Ward of Court (withholding medical treatment) (No. 2)

Cases mentioned in this report::—

Airedale N.H.S. Trust v. BlandELRWLRUNK [1993] A.C. 789; [1993] 2 W.L.R. 316; [1993] 1 All E.R. 821.

Attorney General v. XIRDLRMUNK [1992] 1 I.R. 1; [1992] I.L.R.M. 401; [1992] 2 C.M.L.R. 277.

Auckland Area Health Board v. Attorney-GeneralUNK [1993] 1 N.Z.L.R. 235.

In re B. (A Minor) (Wardship: Medical Treatment)WLRUNK [1981] 1 W.L.R. 1421; [1990] 3 All E.R. 927.

In re B. (A Minor) (Wardship: Sterilisation)ELRWLRUNK [1988] A.C. 199; [1987] 2 W.L.R. 1213; [1987] 2 All E.R. 206.

Banco Ambrosiano s.p.a. v. Ansbacher & Co. Ltd.DLRM [1987] I.L.R.M. 669.

In re Birch (1892) 29 L.R. Ir. 274.

In re Conroy (1985) 98 N.J. 321; 486 A 2d 1209.

Cruzan v. Director Missouri Department of HealthUNKUNK (1990) 497 U.S. 261; 110 S. Ct. 2841.

In re D.IRDLRM [1987] I.R. 449; [1988] I.L.R.M. 251.

In re Fiori (1995) 652 A.R. 2d 1350.

G. v. An Bord UchtálaIRDLTR [1980] I.R. 32; (1978) 113 I.L.T.R. 25.

In re Godfrey (1892) L.R. Ir. 278.

In re J. (A Minor) (Wardship: Medical Treatment)ELRWLRUNK [1991] Fam. 33; [1991] 2 W.L.R. 140; [1990] 3 All E.R. 930.

Kennedy v. IrelandIRDLRM [1987] I.R. 587; [1988] I.L.R.M. 472.

McGee v. Attorney GeneralIRDLTR [1974] I.R. 284; (1973) 109 I.L.T.R. 29.

In re The Matrimonial Home Bill, 1993IR [1994] 1 I.R. 305.

Murray v. IrelandIRDLRM [1985] I.R. 532; [1985] I.L.R.M. 542.

Norris v. The Attorney GeneralIR [1984] I.R. 36.

O'Brien v. KeoghIR [1972] I.R. 144.

People (D.P.P.) v. J.T. (1988) 3 Frewen 141.

In re Quinlan (1976) 355 A. 2d. 647; 70 N.J. 10.

Quinn's Supermarket v. A.G.IR [1972] I.R. 1.

Rasmussen v. Fleming (1987) 154 Ariz. 207; 741 P. 2d. 674.

Ryan v. Attorney GeneralIR [1965] I.R. 294.

State (C.) v. FrawleyIR [1976] I.R. 365.

Union Pacific Railway Co. v. BotsfordUNKUNK (1891) 141 U.S. 250; 11 S. Ct. 1000.

Walsh v. Family Planning Services Ltd.IR [1992] 1 I.R. 496.

Constitution - Right to life - Right to die a dignified and natural death - Right of autonomy - Right of self-determination - Right to bodily integrity - Right to privacy - Requirements of the common good - Constitutional rights of family of ward of court - Whether family entitled to direct that medical treatment and care should cease - Constitution of Ireland, 1937, Article 40, ss. 1, and 3 and Article 41.

Wards of court - Medical practitioner - Patient in near persistent or permanent vegetative state - Maintenance of life by artificial feeding - Whether withdrawal of artificial feeding lawful - Invasive medical treatment - Whether artificial nutrition and hydration constituting "medical treatment" - Whether artificial nutrition and hydration "normal" - Whether ward terminally ill - Whether in the best interest of ward to prolong life by the continuance of such treatment.

Wards of court - Jurisdiction of the High Court in relation to affairs of persons of unsound mind - Parens patriae - Origins of jurisdiction - Courts of Justice Act, 1924 (No. 10), s. 19, sub-s. 1 - Courts of Justice Act, 1936 (No. 48), s. 9, sub-s. 1 - Courts (Supplemental Provisions) Act, 1961 (No. 39), s. 9.

Evidence - Standard of proof - Application relating to ward of court - Whether a lis inter partes - Whether sufficient if evidence clear and convincing - Role of court - Whether wishes of ward's committee and family to be taken into consideration.

Notice of motion.

The facts have been summarised in the headnote and are fully set out in the judgments, infra.

By notice of motion dated the 7th March, 1995, the applicant sought an order directing that all artificial nutrition and hydration of a ward of court should cease, and directions as to the future care of the ward. By order dated the 13th March, 1995, the High Court (Lynch J.) directed that points of claim be delivered on behalf of the applicant and granted the institution and Attorney General liberty to respond. The General Solicitor for Wards was appointed guardian ad litem by the Lynch J. on the 20th March, 1995. By order dated the 22nd March, 1995, Lynch J. directed that the hearing of the substantive application on oral evidence be held in camera and that the judgment be delivered in public.

Points of claim were delivered on behalf of the applicant on the 14th March, 1995, and a reply was delivered by the institution on the 30th March, 1995. The application was heard by the High Court (Lynch J.) on the 4th, 5th, 6th and 7th April, 1995.

The Attorney General, the institution and the guardian ad litem appealed against the orders of the High Court by notices of appeal dated the 12th, 17th and 24th May, 1995, respectively.

By notice to vary dated the 24th May, 1995, the applicant sought to have the High Court orders varied in respect of the standard of proof which had been applied and the authority of the family to determine the matters relating to the ward. The appeal was heard by the Supreme Court on the 14th, 15th, 20th, 21st and 22nd June, 1995.

Article 40, s. 1 of the Constitution of Ireland, 1937, provides as follows:—

"All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."

Article 40, s. 3 provides:—

"1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

Article 41, s. 1, states:—

"1. The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2. The State, therefore, guarantees to protect the Family in its Constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State."

Section 9, sub-s. 1 of the Courts (Supplemental Provisions Act), 1961, vests the jurisdiction in lunacy and minor matters, previously exercised by the Lord Chancellor of Ireland prior to 1922, in the President of High Court. Section 9, sub-s. 2, providesinter alia that the jurisdiction may be assigned by the President in the High Court to an ordinary judge of the High Court for the time being assigned in that behalf.

On the 26th April, 1972, when the ward was twenty-two years of age, she underwent a minor gynaecological operation under general anaesthetic. During the procedure she suffered three cardiac arrests which resulted in anoxic brain damage. In the following five or six months the ward showed minimal signs of recovery which did not continue. On the 24th October, 1974, she was made a ward of court. The ward remained under the care and supervision of the medical institution where she had been originally admitted for her operation in 1972.

The ward of court was initially fed through a nasogastric tube which she seemed to find somewhat distressing and after twenty years or so this was replaced by a gastrostomy tube in April, 1992. The ward required full nursing care. She was spastic and both arms and hands were contracted. Both her legs and feet were extended. Her jaws were clenched and she had a tendency to bite the insides of her cheeks and her tongue, her back teeth were capped to prevent the front teeth from closing. She could not swallow or speak. She was incontinent and bedridden. She had no capacity for speech or for communicating. A speech therapist failed to elicit any means of communication. She had a minimal capacity to recognise, and followed or tracked people with her eyes and reacted to noise. The ward's heart and lungs functioned normally. If she continued to be nourished by tube, the ward might have lived for many years but could have died if she developed some infection unless it was treated aggressively with antibiotics.

The applicant, who was the mother and committee of the ward, sought directions from the court as to the proper care and treatment of the ward. It was submitted on behalf of the applicant that by virtue of Article 41, s. 1, of the Constitution, it was the family's prerogative, acting bona fide in the interests of the ward, to decide whether the medical treatment being afforded to the ward should be withdrawn and that their decision was binding on the court as being made in pursuance of the family's inalienable and imprescriptible rights guaranteed under the Constitution.

It was submitted on behalf of the guardian ad litem and the Attorney General that it was for the court to decide all matters relating to a ward of court, not for the family or the carers, as by virtue of Article 40, s. 3, of the Constitution, the right to life was pre-eminent and all other fundamental rights must give way to it. Counsel on behalf of the institution where the ward was being cared for and treated submitted that as the ward had limited cognitive functions and was not in a persistent vegetative state nor terminally ill, the treatment being afforded to the ward should continue to prolong her life. It was submitted that the care and treatment was being administered in accordance with the ward's constitutional rights and was not intrusive or burdensome to the ward.

Held by Lynch J., in granting the relief sought by the applicant and in holding that the withdrawal of medical treatment was lawful, 1, that the ward was not fully in a persistent vegetative state but was nearly so and had minimal cognitive capacity.

2. That the standard of proof to be applied was that the evidence should be clear and convincing.

3. That as the ward...

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