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

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

High Court

Supreme Court

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.

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 was a ward of court, it was for the Court to decide all matters relating to the ward by virtue of the jurisdiction conferred on the Court, although the views of the family and carers were factors to be taken into consideration.

In re D. [1987] I.R. 449 followed.

4. That in determining the matter the Court was exercising the parens patriaejurisdiction which had been formerly exercised by the Lord Chancellors of Ireland prior to 1922 and which was now vested in the President of the High Court or, at his discretion, in an ordinary member of the High Court.

5. That although the State had an interest in preserving life this interest was not absolute in the sense that life must be preserved and prolonged at all costs and no matter what the circumstances.

6. That despite the fact that the right to life ranked first in the hierarchy of personal rights, it might nevertheless be subject to the citizen's right of autonomy, self-determination, privacy or dignity, when exercised by a competent citizen or on their behalf.

7. That the nourishment by gastrostomy tube being afforded to the ward was an abnormal, artificial way of receiving nourishment and constituted a form of medical treatment.

8. That the test to be applied by the Court in determining the issue was whether it was in the best interests of the ward that her life should be prolonged by the continuation of the abnormal, artificial means of nourishment, or, whether the medical treatment should be withdrawn.

Airedale N.H.S Trust v. Bland [1993] A.C. 789 followed.

9. That the Court should adopt the viewpoint of a prudent, good and loving parent in deciding what course should be taken.

10. That the benefit to the ward of sustaining her life by abnormal artificial means of nourishment was far outweighed by the burdens of so sustaining life with absolutely no prospect of any improvement in the ward's condition.

11. That it was in the best interests of the ward that the artificial nourishment be terminated allowing her to die with all such palliative care and medication as was necessary to ensure a peaceful and pain-free death.

The institution, the guardian ad litem and the Attorney General appealed to the Supreme Court. The applicant sought to have the orders of the High Court varied in so far as they determined the standard of proof to be applied and the authority of the family.

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Blayney and Denham JJ.; Egan J. dissenting), in dismissing the appeal, 1, that the trial judge in deciding the issues had exercised the parens patriae jurisdiction in lunacy and minor matters which had been previously vested in the Lord Chancellors of Ireland prior to 1922 and which was now vested in the President of the High Court by virtue of s. 9 of the Courts (Supplemental Provisions) Act, 1961 and which had been properly assigned to and exercised by the trial judge.

In re D. [1987] I.R. 449 applied.

2. That when a person was made a ward of court, the court was vested with jurisdiction over all matters relating to the person and estate of the ward and in the exercise of such jurisdiction was subject only to the provisions of the Constitution.

3. That the exercise by the court of the jurisdiction conferred on it by virtue of s. 9 of the Court (Supplemental Provisions) Act, 1961, did not, in any way, amount to a failure to protect the family in its constitution and authority.

4. That in the exercise of its jurisdiction...

To continue reading

Request your trial
61 cases
  • Dunne v DPP
    • Ireland
    • Supreme Court
    • 11 May 2016
    ...Appeal found no basis for distinguishing Davis. 50 The Court also referred to Re A Ward of Court (withholding medical treatment) (No. 2) [1996] 2 I.R. 79, which concerned the lawfulness of the withdrawal of artificial feeding for a patient, who had suffered catastrophic brain injury in the ......
  • North Western Health Board v H.W.
    • Ireland
    • Supreme Court
    • 8 November 2001
    ...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......
  • Fitzpatrick v F.K. and another
    • Ireland
    • High Court
    • 25 April 2008
    ...of child overrode mother's constitutional rights to religious freedom - In re a Ward of Court (withholding medical treatment) (No 2) [1996] 2 IR 79, In re T (Adult: refusal of medical treatment) [1993] Fam 95, In Re C (Adult: refusal of medical treatment) [1994] 1 WLR 290, In re MB (Medica......
  • Irish Hospital v H (R) & McG (J)
    • Ireland
    • High Court
    • 11 January 2012
    ...32 BMLR 44 C (A MINOR), IN RE 1997 40 BMLR 31 T (A MINOR), IN RE 1997 1 AER 906 Z (A MINOR), IN RE 1995 4 AER 961 A WARD OF COURT, IN RE 1995 2 ILRM 401 COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S9(1) WARDS OF COURT Jurisdiction Child - Medical treatment - Irreversible brain damage -No pro......
  • Request a trial to view additional results
15 books & journal articles
  • Inherent jurisdiction and inherent powers of irish courts
    • Ireland
    • Irish Judicial Studies Journal Nbr. 2-9, July 2009
    • 1 July 2009
    ...such cases as Re E. (a minor), 32 Re W. (a minor) 33 and _____________________________________________________ 30 In re a Ward of Court [1996] 2 I.R. 79, at 103-107. 31 Joseph, “Inherent Jurisdiction and Inherent Powers in New Zealand” (note 16), at 226. 32 Re E. (a minor) [1990] 9 B.M.L.R.......
  • The 2006 EC Data Retention Directive: A systematic failure
    • Ireland
    • Hibernian Law Journal Nbr. 10-2011, January 2011
    • 1 January 2011
    ...Rights and the Law”, (2009) 19(3) ICLJ 71 207 Kennedy & Arnold v Ireland [1987] I.R. 587 at p.587 (per Hamilton J.); Re a Ward of Court [1996] 2 I.R. 79 at p.126 (per Hamilton CJ) and at p.162 (per Denham J); Haughey v Moriarty [1999] 3 I.R. 1 at p.58 (per Hamilton CJ); “(t)here is no doubt......
  • The Right not to be Resuscitated? Do Not Attempt Resuscitation (DNAR) Orders and the Limits of the Legal Framework in Ireland
    • Ireland
    • Hibernian Law Journal Nbr. 18-2019, January 2019
    • 1 January 2019
    ...on Human Rights, as amended) (‘ECHR’). 30 Mills and Mulligan (n 5) 463. 31 In Re a Ward of Court (withholding medical treatment) (No 2) [1996] 2 IR 79 (SC); Pretty v United Kingdom App No 2346/02 (ECHR, 29 April 2002). 32 See discussion of recognition of rights under Constitution and ECHR i......
  • Bearing a Constitutional Cross: Examining Blasphemy and the Judicial Role in Corway v. Independent Newspapers
    • Ireland
    • Trinity College Law Review Nbr. III-2000, January 2000
    • 1 January 2000
    ...McGee v. Attorney General [1974] IR 284; (1975) 109 ILTR 29; Attorney General v. X [1992] 1 IR 1; In re Ward of Court [19951 2 ILRM 401; [1996] 2 IR 79; Attorney General (SPUC) v. Open-Door Counselling [1988] IR 593; [1987] ILRM 477; Society for Separation of Church and State v. Minister fo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT