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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Ward of Court, Re a [1995] IESC 1; [1996] 2 IR 73; [1995] 2 ILRM 401 (27th July, 1995) URL: http://www.bailii.org/ie/cases/IESC/1995/1.html Cite as: [1996] 2 IR 73, [1995] IESC 1, [1995] 2 ILRM 401 |
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1. The
effect of the said orders is that, if implemented, and nourishment is withdrawn
from the ward, she will die in a comparatively short time.
2. The
said orders were made pursuant to an application therefor by the committee of
the ward, being the ward’s mother, which application was supported by
the members of the family of the ward but opposed by the Attorney General; by
the institution in which the ward is being maintained and cared for; and by the
General Solicitor for Wards of Court who, by order of the High Court made on
the 20th March, 1995
,
had
been appointed guardian
ad
litem
of
the ward.
3. The
jurisdiction of the learned trial judge to hear and determine the application
and to make the aforesaid orders arose in the following circumstances:-
4. Historically,
the jurisdiction over wards of court and their estates attached to the British
Crown as
parens
patriae
and
the administration of such jurisdiction was delegated to the Lord Chancellor
of England.
5. In
practice the authority to administer the jurisdiction rested on a special
entrustment under Sign-manual issued to each successive Lord Chancellor by a
letter in lunacy.
6. This
jurisdiction was by the Lunacy (Ireland) Act, 1901, made exercisable by such
judges of the Supreme Court as might be similarly entrusted under Sign-manual.
7. By
virtue of the terms of the Government of Ireland Act, 1920, the said
jurisdiction became exercisable by the Lord Chief Justice of Ireland.
8. By
virtue of the provisions of s. 19 of the Courts of Justice Act, 1924, there was
transferred to the Chief Justice and made exercisable by him all such
jurisdiction in lunacy and minor matters as had been formerly exercised by the
Lord Chancellor of Ireland and was at the passing of the Act exercised by the
Lord Chief Justice of Ireland.
10. By
virtue of the provisions of s. 9, sub-s. 1, of the Courts of Justice Act, 1936,
this jurisdiction was transferred to the President of the High Court or such
judge of the High Court assigned in that behalf by him and was further vested
in the President of the High Court by virtue of the provisions of s. 9 of the
Courts (Supplemental Provisions) Act, 1961.
11. The
President of the High Court assigned Lynch J. to exercise the jurisdiction
vested in him in relation to this application.
12. The
nature and extent of the jurisdiction vested in the President of the High
Court, or in an ordinary judge of the High Court when so directed by the
President of the High Court, was considered by this Court in
In
re D.
[1987]
I.R. 449; [1988] ILRM 251.
14. I
am satisfied that this section must be construed as vesting a jurisdiction in
the High Court, as both sub-sections 1 and 2 of it describe it as doing, the
extent of which jurisdiction is described and identified by subclauses (a) and
(b) by reference to jurisdictions formerly exercised, and by subclause (c) by
reference to jurisdictions previously vested in the former High Court.
15. It
does not, as did s.19 of the Act of 1924, transfer any jurisdiction but rather
directly vests it.
17. It
would appear that the jurisdiction in lunacy matters exercised by the former
Lord Chancellors of Ireland was vested in them by a letter in lunacy addressed
to each successive Chancellor by each successive sovereign. The terms of and
the interpretation to be placed on this ‘letter in lunacy’ is dealt
with by Ashbourne L.C. in
In
re Birch
(1892)
29 L.R. Ir. 274, at p. 275, in the following terms:-
18. The
terms of the Queen’s Letter in Lunacy expressly state the nature of the
jurisdiction it confers. It commences: “Whereas it belongeth unto us in
right of our royal prerogative to have the custody of idiots and lunatics and
their estates in that part of the United Kingdom called Ireland. . . . We
therefore. . . have thought fit to entrust you with the care and commitment of
the custody of the idiots and lunatics and their estates.” These words
amount to an express delegation by the Crown under the Sign-manual of its
prerogative jurisdiction in Lunacy to the Lord Chancellor. The single purpose
of the Crown is to benefit this afflicted class by confiding them to the care
of its highest Judge and one of its greatest officials. There is no restriction
by which the jurisdiction of the Lord Chancellor is confined to any particular
section of this afflicted class. The parental care of the Sovereign extends
over all idiots and lunatics, whether so found by legal process or not. That
high prerogative duty is delegated to the Lord Chancellor, and there is no
statute which in the slightest degree lessens his duty or frees him from the
responsibility of exercising that parental care and directing such inquiries
and examinations as justice to the idiots and lunatics may require. The Queen
puts the care and commitment of the custody of idiots and lunatics before the
care of their estates, thus showing with unmistakable clearness that the first
and highest care of the Lord Chancellor should be given to the personal
treatment of this afflicted class.
19. The
power given by the Queen’s Sign-manual creates a high and responsible
duty in the Lord Chancellor towards these afflicted persons, calling on him to
act on their behalf whenever it may come to his notice that their liberty or
happiness require his intervention, and this beneficent jurisdiction is not
confined to those so found by process of law or narrowed to any special class.
The power and duty so given and created afford in this case an illustration of
the most salutary and protective exercise of the prerogative of the Sovereign.
20. I
am driven by these two decisions and by the statement of a former Lord
Chancellor of Ireland as to what his understanding of his jurisdiction was and
indeed the exercise by him of it, to the conclusion that it extended beyond the
taking into wardship of persons who had property and the management and
protection of their property as well as the protection of their person. Such a
construction of the jurisdiction in lunacy matters vested by the Act of 1961 in
the High Court seems to me to obtain significant support from a consideration
of the provisions of Article 40, s. 3, sub-s. 2 of the Constitution where the
obligation imposed on the State by its laws to protect as best it may from
unjust attack and in the case of injustice done to vindicate the life and
person of every citizen is put in equal place with the obligation to protect
and vindicate the property rights of every citizen.
21. The
designation of people who for various reasons may be of unsound mind and
incapable of looking after their affairs as ‘idiots and lunatics’
is representative of a by-gone age but the jurisdiction in regard thereto is
quite clear.
23. The
single purpose of the Crown is to benefit this afflicted class by confiding
them to the care of its highest Judge and one of its greatest officials. There
is no restriction by which the jurisdiction of the Lord Chancellor is confined
to any particular section of this afflicted class. The parental care of the
Sovereign extends over all idiots and lunatics, whether so found by legal
process or not. That high prerogative duty is delegated to the Lord Chancellor,
and there is no statute which in the slightest degree lessens his duty or frees
him from the responsibility of exercising that parental care and directing such
inquiries and examinations as justice to the idiots and lunatics may require.
The Queen puts the care and commitment of the custody of idiots and lunatics
before the care of their estates, thus showing with unmistakable clearness that
the first and highest care of the Lord Chancellor should be given to the
personal treatment of this afflicted class.
24. When
a person is made a ward of court, the court is vested with jurisdiction over
all matters relating to the person and estate of the ward and in the exercise
of such jurisdiction is subject only to the provisions of the Constitution:
there is no statute which in the slightest degree lessens the court’s
duty or frees it from the responsibility of exercising that parental care.
25. That
duty includes giving directions with regard to the care, maintenance and
well-being of the ward. While a committee of the person of a ward is appointed
by the court, such committee is subject to the directions of the court and all
decisions with regard thereto are made by the court.
26. It
is for this reason that the application made by the committee of the person of
the ward, and supported by the members of the family of the ward, was necessary
in the instant case.
27. In
the exercise of this jurisdiction the court’s prime and paramount
consideration must be the best interests of the ward. The views of the
committee and family of the ward, although they should be heeded and careful
consideration given thereto, cannot and should not prevail over the
court’s view of the ward’s best interest.
28. As
stated by Balcombe L.J. in
In
re J. (a Minor) (Wardship: Medical Treatment)
[1990] 3 All E.R. at p.941:-
29. In
deciding in any given case what is in the best interests of the ward, the court
adopts the same attitude as a responsible parent would do in the case of his or
her own child; the court, exercising the duties of the Sovereign as
parens
patriae,
is
not expected to adopt any higher or different standard than that which, viewed
objectively, a reasonable and responsible parent would do.
30. It
is quite clear from the judgment of the learned trial judge that he accepted
that in dealing with the application before him he was exercising the
parens
patriae
jurisdiction
exercised by the Lord Chancellors in Ireland prior to 1922, which is now vested
in the President of the High Court or at his direction, by an ordinary judge of
the High Court for the time being assigned in that behalf by him.
32. As
the ward is a ward of Court it is for the Court to decide the issues and not
the family nor the carers, the Court being endowed with the
parens
patriae
jurisdiction
exercised by the Lord Chancellors in Ireland prior to 1922.
33. He
made it clear however that “the views of the family and the carers”
would carry weight with the Court.
34. In
view of the nature of the application made by the committee of the person of
the ward and its consequences to the ward if successful it is desirable at this
stage to set forth in detail the condition of the ward as found by the learned
trial judge.
36. Over
two decades ago the ward, who was then 22 years old, underwent a minor
gynaecological operation under general anaesthetic. During the procedure she
suffered three cardiac arrests resulting in anoxic brain damage of a very
serious nature. Since that catastrophe the ward has been completely dependent
on others, requiring total nursing care. She is spastic as a result of the
brain damage. Both arms and hands are contracted. Both legs and feet are
extended. Her jaws are clenched and because she had a tendency to bite the
insides of her cheeks and her tongue, her back teeth have been-capped to
prevent the front teeth from fully closing. She cannot swallow. She cannot
speak. She is incontinent.
37. In
the first five or six months after the catastrophe, there were minimal signs of
recovery which unfortunately did not continue but if anything faded with the
passing years. For some twenty years she was fed through a nasogastric tube.
Generally, but especially in the later years, she seemed to find this
distressing and it was replaced by a gastrostomy tube in April, 1992, which
required the administration of a general anaesthetic. Since then she has been
fed through the gastrostomy tube with much greater ease and success. This tube
became detached in December, 1993, and a new tube was inserted which came out
the next day and had to be reinserted the following day under general
anaesthetic.
38. The
ward is, of course, bedridden. She is in a condition which is nearly, but not
quite, what in modern times has become known as persistent or permanent
vegetative state (P.V.S.)...
39. In
the present case the ward’s heart and lungs function normally. Assuming
that she is adequately furnished with nutrition and hydration (nourishment),
her digestive system operates normally as do her bodily functions, although
bowel movements require some assistance, but as she cannot swallow and as her
teeth are spastically clenched together, she cannot receive nourishment in the
normal way and as already stated, is and has had to be tube-fed since the
catastrophe. Assuming that she continues to be nourished by tube, she could
live for many years but of course she might also die in the short term if she
developed some infection such as pneumonia, unless it were treated aggressively
with antibiotics.
40. The
ward has no capacity for speech or for communicating. A speech therapist failed
to elicit any means of communication. She has a minimal capacity to recognise,
for example, the long established nursing staff and to react to strangers by
showing distress. She also follows or tracks people with her eyes and reacts to
noise, although the latter is mainly, if not indeed, wholly reflex from the
brain stem and a large element of reflex eye tracking is also present in the
former which, however, also has some minimal purposive content...
41. I
am satisfied that although the ward is not fully P.V.S., she is very nearly so
and such cognitive capacity as she possesses is extremely minimal. A fully
P.V.S. person cannot feel pain and has no capacity for pleasure or displeasure
even though they may groan or grimace or cry, especially in response to painful
stimuli, nor have they any realisation whatever of their tragic situation. This
is probably the ward’s state but if such minimal cognition as she has
includes an inkling of her catastrophic condition, then I am satisfied that
that would be a terrible torment to her and her situation would be worse than
if she were fully P.V.S. There is no prospect whatsoever of any improvement in
the condition of the ward.
42. It
was because of the said condition of the ward that her mother, the committee of
the person of the ward, with the full support of all the brothers and sisters
of the ward, sought the orders hereinbefore referred to.
43. In
making the said application the committee and other members of the family were,
as stated by the learned trial judge:-
44. It
was accepted on behalf of the family that the standard of care given to the
ward has been and is excellent and could not be better.
45. The
committee and family of the ward considered that by virtue of the provisions of
Article 41, s. 1 of the Constitution that it was the family’s
prerogative, acting in the best interests of the ward, to decide whether life
support in the form of tube nourishment, antibiotics and other medical or
surgical treatments should be maintained or withdrawn and that their decision
should bind the Court as being made in pursuance of their inalienable and
imprescriptible rights antecedent and superior to all positive law.
46. The
proceedings in this case were instituted by a notice of motion dated the 7th
March, 1995
,
brought
by the committee of the ward and addressed to:-
47. On
the 13th March, 1995, the learned trial judge directed that points of claim
should be delivered on behalf of the family to the institution and the Attorney
General with liberty to these parties to respond if so wished.
48. On
the 20th March, 1995, the learned trial judge appointed the General Solicitor
for Wards of Court to be guardian
ad
litem
of
the ward with a view specifically to contradict the case being made by the
family.
49. On
that day, he also heard submissions from the parties on the issue as to whether
the hearing of the application should or should not be heard in public.
50. On
the 22nd March, 1995, the learned trial judge ruled that the hearing of the
substantive application on oral evidence should be
in
camera,
both
as to evidence and submissions but that the judgment should be delivered in
public in such a manner as to preserve the anonymity of the ward, the family,
the institution and the witnesses.
51. Points
of claim were delivered on behalf of the family on the 14th March, 1995, in
which the factual background was set out and it was claimed:-
52. A
reply to the points of claim was delivered on behalf of the institution which
is caring for the ward on the 30th March, 1995, in which issue was joined
generally on the points of claim and furthermore para. 18 pleaded as follows:-
53. Whatever
order or determination this Honourable Court may be disposed to make upon the
application of the family, the institution ought not be required to do any act
contrary to its philosophy and code of ethics and there is no legal basis for
any such requirement.
54. At
the substantive hearing it was accepted by the family and by all the other
parties that this plea of the institution was valid and that no order should be
made by the Court against the institution, the obedience to which would
contravene the philosophy and code of ethics of the institution.
55. Written
submissions were prepared and submitted to the Court on behalf of each of the
parties to the proceedings and oral evidence was heard by the learned trial
judge over a period of four days. In addition he heard oral submissions on
behalf of all the parties.
57. As
stated by the learned trial judge the application in this case raised
“issues for decision which had never come before the courts of this State
previously”.
58. The
application before the High Court and the appeal from the order of the High
Court to this Court raises moral, legal, and constitutional questions of a
profound and fundamental nature, questions literally of life and death.
60. These
were the main issues involved in the instant case with which the learned trial
judge was obliged to deal. These issues were part of much broader issues and
the learned trial judge stated:-
61. The
problem with which this Court is now faced is admirably summarised by Lord
Browne-Wilkinson in the House of Lords in
Airedale
N.H.S. Trust v. Bland
[1993]
A.C. 789 where at p. 878 of the report, he says:-
62. I
have no doubt that it is for the Parliament, not the courts, to decide the
broader issues which this case raises. Until recently there was no doubt what
was life and what was death. A man was dead if he stopped breathing and his
heart stopped beating. There was no artificial means of sustaining these
indications of life for more than a short while. Death in the traditional sense
was beyond human control. Apart from cases of unlawful homicide, death occurred
automatically in the course of nature when the natural functions of the body
failed to sustain the lungs and the heart.
63. Recent
developments in medical science have fundamentally affected these previous
certainties. In medicine, the cessation of breathing or of heartbeat is no
longer death. By the use of a ventilator, lungs which in the unaided course of
nature would have stopped breathing, can be made to breathe, thereby sustaining
the heartbeat. Those like Anthony Bland who would previously have died through
inability to swallow food can be kept alive by artificial feeding. This has led
the medical profession to redefine death in terms of brain stem death, i.e.,
the death of that part of the brain without which the body cannot function at
all without assistance. In some cases it is now apparently possible, with the
use of the ventilator, to sustain a beating heart even though the brain stem,
and therefore in medical terms the patient, is dead: “the ventilated
corpse”.
64. I
do not refer to these factors because Anthony Bland is already dead, either
medically or legally. His brain stem is alive and so is he: provided that he is
artificially fed and the waste products evacuated from his body by skilled
medical care, his body sustains its own life. I refer to these factors in order
to illustrate the scale of the problem which is presented by modem
technological developments, of which this case is merely one instance. The
physical state known as death has changed. In many cases the time and manner of
death is no longer dictated by nature but can be determined by human decisions.
The life of Anthony Bland, in the purely physical sense, has been and can be
extended by skilled medical care for a period of years.
65. The
learned trial judge accepted the description of the condition of persistent or
permanent vegetative state (P.V.S.) given by Sir Thomas Bingham, M.R., in the
Court of Appeal in England in the
Bland
case
as follows:-
66. P.V.S.
is a recognised medical condition quite distinct from other conditions
sometimes known as ‘irreversible coma’, ‘the Guillain-Barre
syndrome’, ‘the locked-in syndrome’ and ‘brain
death’. Its distinguishing characteristics are that the brain stem
remains alive and functioning while the cortex of the brain loses its function
and activity. Thus the P.V.S. patient continues to breathe unaided and his
digestion continues to function. But although his eyes are open, he cannot see.
He cannot hear. Although capable of reflex movement, particularly in response
to painful stimuli, the patient is incapable of voluntary movement and can feel
no pain. He cannot taste or smell. He cannot speak or communicate in any way.
He has no cognitive function and can thus feel no emotion, whether pleasure or
distress.
67. The
learned trial judge, having carefully considered the evidence in this case, was
satisfied that “although the ward is not fully P.V.S., she is nearly so
and such cognitive capacity as she possesses is extremely minimal”.
68. She
has a minimal capacity to recognise, for example, the long established nursing
staff and to react to strangers by showing distress. She also follows or tracks
people with her eyes and reacts to noise, although the latter is mainly, if not
indeed, wholly reflex from the brain stem and a large element of reflex eye
tracking is also present in the former which, however, also has some minimal
purposive content.
69. He
considered the evidence given by all the members of the family who stated that
in over two decades of visiting her, they have never detected any signs of
recognition nor efforts at communication by her. He had no doubt as to the
veracity and reliability of the family’s evidence and marrying such
evidence with the evidence by the persons having care of the ward, came to the
conclusion that:-
71. A
fully P.V.S. person cannot feel pain and has no capacity for pleasure- or
displeasure even though they may groan or grimace or cry, especially in
response to painful stimuli, nor have they any realisation whatever of their
tragic situation. This is probably the ward’s state but if such minimal
cognition as she has includes an inkling of her catastrophic condition, then I
am satisfied that would be a terrible torment to her and her situation would be
worse than if she were fully P.V.S. There is no prospect whatsoever of any
improvement in the condition of the ward.
72. These
findings by the learned trial judge were based on credible testimony and as
such are binding on this Court.
73. It
is clear from the evidence and the findings of the learned trial judge that,
since the catastrophe that caused the injury to the ward on the 26th April,
1972, her life has been prolonged in the condition described by means of
providing nourishment through either a nasogastric or a gastrostomy tube
inserted in her body.
75. The
nasogastric tube was developed early in this century. It is uncomfortable and
many patients have great difficulty in tolerating it. The gastrostomy tube was
developed only in the early 1980s. It is much less stressful on the patient and
is now widely used where long term artificial feeding is necessary. Neither
tube allows the patient the pleasures of eating and drinking: the taste and the
smell of food is bypassed.
76. It
is said by the carers that the provision of nourishment by means of a tube must
now be considered to be normal for the ward since she has been so nourished for
over twenty years. I cannot see, however, that a method of providing
nourishment that is manifestly artificial and therefore abnormal at the outset,
can change its essential nature and be regarded as and become normal or
ordinary, simply because it has continued for a long time. It may be that a
patient may get used to the abnormal artificial method of providing nourishment
and no longer find it burdensome, but that does not make tube feeding normal.
In the ward’s case, it is also clear that she never got used to the
nasogastric tube. She reacted against it by pulling it out an enormous number
of times, probably well over a thousand times and probably also by way of
reflex reaction to an unpleasant stimulus and if there was any element of
cognition in her rejection of the nasogastric tube, that makes it all the more
emphatic. Its re-insertion, prior to its replacement by the gastrostomy tube in
April, 1992, used to cause great distress to the ward.
77. The
gastrostomy tube is now being used for three years. It is a far easier and more
satisfactory way of delivering nourishment to the ward and is much less
burdensome to her. That does not, however, make it in any sense a normal way of
receiving nourishment. I gather from the evidence that there are now patients
who are able to nourish themselves by way of gastrostomy tube. Such patients,
of course, lose the pleasures of the table but may have much else to live for.
Even in the case of such patients, however, nourishment by gastrostomy tube is
an abnormal, artificial way of receiving nourishment and is a form of medical
treatment. In their case, the benefits of thus prolonging life far outweigh the
burdens of the self-administered treatment of nourishment by gastrostomy tube
just as the benefits to the diabetic patient of prolonging life by
self-injected medication far outweigh the burdens of such injections. I should
also say that I see no difference in principle between the artificial provision
of air by a ventilator and the artificial provision of nourishment by a tube.
79. I
take the view that the proper and most satisfactory test to be applied by the
court in this case is the best interests test, i.e. whether it is in the best
interests of the ward that her life, such as it is at present, should be
prolonged by the continuation of the abnormal, artificial means of nourishment
or whether she should be allowed to slip away naturally by the withdrawal of
such abnormal, artificial means which would happen, I am satisfied on the
evidence within two weeks or so and without pain or distress.
80. In
adopting this test, the learned trial judge was adopting the test suggested by
Lord Goff in the
Bland
case
at p. 868 of the report where he stated:-
82. Whilst
the best interests of the ward is the acid test, I think that I can take into
account what would be her own wishes if she could be granted a momentary lucid
and articulate period in which to express them and if, despite what I have
already said, I can form a view on the matter. I think that it is highly
probable, and I find the evidence of the family on this aspect of the case to
be clear and convincing, that the ward would choose to refuse the continuance
of the present regime to which she is subjected involving abnormal, artificial
feeding and total nursing care with all the indignities inherent in such care
and would instead choose the withdrawal of such abnormal, artificial feeding
resulting in an immediate reduction of bodily functions and their attendant
indignities and a peaceful death in accordance with nature within two weeks or
so.
83. This
finding by the learned trial judge that the ward would choose to refuse the
continuance of the present regime to which she is subjected involving abnormal
artificial feeding and total nursing care with all the indignities inherent in
such care and would choose the withdrawal of such abnormal, artificial feeding
resulting in an immediate reduction of bodily functions and their attendant
indignities and a peaceful death in accordance with nature within two weeks or
so was based on evidence from the family which he found to be clear and
convincing.
85. The
Court should approach the matter from the standpoint of a prudent, good and
loving parent in deciding what course should be adopted. The mother of the ward
in this case is such a parent and although it is for the Court rather than for
her to decide the matter, her views and those of the family must carry
considerable weight with the Court. I have come to the conclusion that the
benefit to the ward of sustaining her life by the present abnormal, artificial
means of nourishment is far outweighed by the burdens of so sustaining life
with absolutely no prospect of any improvement in the ward’s condition.
Accordingly, I find that it is in the best interest of the ward that the
abnormal artificial nourishment, whether by nasogastric or by gastrostomy tube,
should be terminated, thus ceasing artificially to prolong her life to no
useful purpose and allowing her to die in accordance with nature with all such
palliative care and medication as is necessary to ensure a peaceful and
pain-free death.
86. The
Attorney General, the institution and the guardian
ad
litem
of
the ward have appealed to this Court against the said judgment of and order
made by the learned trial judge.
87. The
committee and family of the ward have applied to vary the judgment of the High
Court only in respect of the following:-
89. It
was submitted on behalf of the family that by virtue of this Article of the
Constitution, it was the family’s prerogative, acting
bona
fide
in
the best interests of the ward, to decide whether life support in the form of
tube nourishment, antibiotics and other medical or surgical treatments should
be maintained or withdrawn and that their decision would bind the Court as
being made in pursuance of their inalienable and imprescriptible family rights
antecedent and superior to all positive law.
90. This
submission was rejected by the learned trial judge on the grounds that as the
ward was a ward of court “it is for the Court to decide the issues and
not the family nor the carers, the Court being endowed with the
parens
patriae
jurisdiction
exercised by the Lord Chancellors in Ireland prior to 1922”.
91. He
made it clear however that, in the exercise of that jurisdiction, the views of
the family would ‘carry weight’ with the Court and in particular
stated:-
92. The
Court should approach the matter from the standpoint of a prudent, good and
loving parent.. . The mother of the ward in this case is such a parent and
although it is for the Court rather than for her to decide the matter, her
views and those of the family must carry considerable weight with the Court.
93. The
exercise by the Court of the jurisdiction now vested in it by s. 9 of the
Courts (Supplemental Provisions) Act, 1961, does not, in any way, amount to a
failure to protect the family in its constitution and authority.
94. In
this case, the ward was made a ward of court on the 24th October, 1974,
pursuant to a petition in that regard presented on her behalf by her father,
who was appointed committee of the person and estate of the ward; upon his
death, the ward’s sister was appointed her committee: when she was
permitted to retire as such committee, her mother was appointed committee in
her stead.
95. The
family had invoked the jurisdiction of the Court and the Court then became
responsible for all decisions with regard to the person and estate of the ward
and the nature of that jurisdiction –
parens
patriae
–
has been described earlier during the course of this judgment.
96. In
the exercise of such jurisdiction, the Court will have regard to, but not be
bound by, the wishes of the committee and members of the family. The ultimate
responsibility for making any necessary decision rests on the Court.
97. This
does not encroach on the rights of the family because in many cases it is
necessary to protect the personal rights of members of the family guaranteed by
Article 40 of the Constitution.
98. I
am satisfied that the learned trial judge was correct in rejecting the
submission made on behalf of the committee and family of the ward; that he had
jurisdiction to make the decision and that in the exercise of such jurisdiction
he had regard to all relevant factors including the wishes of the family, and I
would refuse the application to vary his judgment on this issue.
99. Each
of the above named parties have appealed against the judgment and order of the
learned trial judge and each party has submitted grounds of appeal.
100. Many
of the grounds are common to all the said parties and can be briefly summarised
as follows:
101. All
the parties made submissions, written and oral, to the Court which were of
considerable assistance to me and other members of the Court.
102. I
do not at this stage intend to summarise these submissions but will refer to
them when dealing with the issues raised in this appeal.
103. As
I have already stated the application before the High Court and the appeal from
the order of the High Court raise moral, legal constitutional and ethical
issues of a profound and fundamental nature, questions literally of life and
death.
104. As
stated by Sir Thomas Bingham M.R. when dealing with similar issues in
Airedale
N.H.S. Trust v. Bland
[1993]
A.C. 789 at p. 808:-
105. The
present appeal raises moral, legal and ethical questions of a profound and
fundamental nature, questions literally of life and death. The case has
naturally provoked much public discussion and great anxiety. Strong and
sincerely held opinions have been expressed both in favour of the decision
under appeal and against it. The issues are such as inevitably to provoke
divisions of opinion. But they are fairly and squarely before the court, which
has had the benefit of eloquent and erudite argument. It cannot shirk its duty
to decide. It is, however, important to be clear from the outset what the case
is, and is not, about. It is not about euthanasia, if by that it meant the
taking of positive action to cause death. It is not about putting down the old
and infirm, the mentally defective or the physically imperfect. . . The issue
is whether artificial feeding and antibiotic drugs may lawfully be withheld
from an insensate patient with no hope of recovery when it is known that if
that is done the patient will shortly thereafter die.
106. I
refer to this passage for the purpose of emphasising that the issues in the
present appeal are somewhat similar to the issues in the
Bland
case
and are not about euthanasia and are not about putting down the old and the
infirm, the mentally defective or the physically infirm but are about the
question whether, under our law and Constitution, artificial feeding and
antibiotic drugs may be withheld from the ward, who is and has been for more
than twenty three years in a coma and has no hope of recovery, when it is
accepted that if that is done, the ward will shortly thereafter die.
108. As
stated by the then Taylor L.J. in
Re
J. (A Minor) (Wardship: Medical Treatment)
[1990]
All
E.R. 930 at p. 943:-
109. That
would be unlawful. There is no question of approving, even in a case of the
most horrendous disability, a course aimed at terminating life or accelerating
death. The court is concerned only with the circumstances in which steps should
not be taken to prolong life.
110. Having
regard to the provisions of Article 40, s. 3, sub-s. 2 of the constitution,
this statement of the law applies with even greater force in this jurisdiction.
Even in the case of the most horrendous disability, any course of action or
treatment aimed at terminating life or accelerating death is unlawful.
111. The
broader issues to which attention has been drawn in this case are matters for
the Oireachtas.
112. The
Court is however bound to deal with the issues raised only in so far as they
relate to this particular ward and the circumstances of this particular ward.
113. While
consideration of the issues relating to this particular ward may involve regard
to and consideration of the broader issues, my ruling in this matter will be
based on and relate only to the circumstances and rights of this particular ward.
114. Having
regard to the circumstances of this ward as outlined in the judgment of the
learned trial judge, the issues which arise for determination in this appeal
are:-
115. The
following provisions of the Constitution are relevant to the issues raised in
this appeal:-
117. 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.
118. 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.
119. 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.
120. 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.
121. 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.
122. The
right to life is one of the fundamental rights which under the Constitution the
State guarantees in its laws to respect and, as far as practicable, to defend,
vindicate and protect as best it may from unjust attack.
123. The
sanctity of human life is recognised in all civilised jurisdictions and is
based on the nature of man.
124. The
Constitution recognises this right and grants to it the protection set forth in
the Constitution. The courts have recognised that the right to life springs
from the right of every individual to life.
125. There
are many other fundamental rights, express or implied, which are acknowledged
by the Constitution and which are afforded similar protection.
126. It
has been well established by many decisions of this Court that where there
exists an interaction of constitutional rights, the first objective of the
courts in interpreting the Constitution and resolving any problems thus arising
should be to seek to harmonise such interacting rights.
127. As
stated by the former Chief Justice, Finlay C.J., in the course of his judgment
in the case of
The
Attorney General v.
X
[1992] I.R. 1; [1992] I.L.M.R. 401 at p. 57/429:-
128. There
are instances, however, I am satisfied, where such harmonisation may not be
possible and in those circumstances I am satisfied, as the authorities appear
to establish, that there is a necessity to apply a priority of rights.
129. I
am satisfied that in this case, if there is an intention of constitutional
rights which I capable of harmonising, the right to life would take precedence
over any other rights.
130. The
nature of the right to life and its importance imposes a strong presumption in
favour of taking all steps capable of preserving it, save in exceptional
circumstances. The problem is to define such circumstances.
131. The
definition of such circumstances must, of necessity, involve a determination of
the nature of the right to life acknowledged by the Constitution.
132. In
the course of his judgment in G.
v.
An Bord Uchtála
[1980]
I.R. 32, Walsh J. stated at p. 69 that:-
133. The
right to life necessarily implies the right to be born, the right to preserve
and defend (and to have preserved and defended) that life, and the right to
maintain that life at a proper human standard in matters of food, clothing and
habitation.
134. In
this statement, Walsh J. clearly recognises that the right to life necessarily
implies various other ancillary rights which were not individually or
specifically set forth in the Constitution and he enumerated such rights as
applied in the case with which he was dealing.
136. These
rights include the right to live life in its fullest content, to enjoy the
support and comfort of her family, to social contact with her peers, to
education, to the practice of her religion, to work, to marry and have
children, to privacy, to bodily integrity and to self determination.
137. These
rights are not, however, unqualified: they may be subject to the constitutional
rights of others and to the requirements of the common good.
139. As
the process of dying is part, and an ultimate, inevitable consequence, of life,
the right to life necessarily implies the right to have nature take its course
and to die a natural death and, unless the individual concerned so wishes, not
to have life artificially maintained by the provision of nourishment by
abnormal artificial means, which have no curative effect and which is intended
merely to prolong life.
140. This
right, as so defined, does not include the right to have life terminated or
death accelerated and is confined to the natural process of dying. No person
has the right to terminate or to have terminated his or her life, or to
accelerate or have accelerated his or her death.
141. In
this case, the ward is in the condition described in the judgment of the
learned trial judge, to portions of which I have referred in the course of this
judgment.
142. Her
life is being artificially maintained by the provision of life sustaining
nourishment through a gastrostomy tube inserted in her body. Such treatment is
in no way, nor intended to be, curative and she will continue to be in the
condition in which she now is, and has been for over twenty years, if she
continues to be provided with nourishment in this manner.
143. There
is no doubt but that the ward, if she were mentally competent, had the right,
if she so wished, to forego such treatment or, at any time, to direct that it
be withdrawn even though such withdrawal would result in her death.
144. This
treatment involved a tube implanted surgically into her stomach through
incisions in her abdominal wall and the provision of nutrition through that
tube. Such treatment is intrusive, constitutes an interference with the
integrity of her body and cannot be regarded as normal means of nourishment.
145. Her
right to bodily integrity is one of the unenumerated personal rights recognised
in and protected by Article 40, s. 3 of the Constitution and was defined by
Kenny J. in
Ryan
v. A.G.
[1965]
I.R.
294 at page 313.
146. The
right to individual privacy is one of the unenumerated personal rights
recognised by Article 40, s. 3 which the courts have identified.
148. Though
not specifically guaranteed by the Constitution, the right to privacy is one of
the fundamental personal rights of the citizen which flow from the Christian
and democratic nature of the State. It is not an unqualified right. Its
exercise may be restricted by the constitutional rights of others or by the
requirements of the common good and is subject to the requirements of public
order and morality.
149. In
the course of an article entitled “The Terminally Ill: The Law’s
Concern” (1986) XXI Ir. Jur. (n.s.) 35, the President of the High Court,
Costello P. stated:-
150. Though
the learned President was writing extra-judicially, I agree with the views
expressed in the said passage.
151. A
competent adult if terminally ill has the right to forego or discontinue
life-saving treatment.
153. It
is quite clear from the evidence that, without the benefit of the nourishment
provided by the treatment being afforded to her she would die within a short
period of time and in this regard, she must be regarded as ‘terminally
ill’.
154. Consequently,
I am satisfied that if she were mentally competent that she would have, in the
circumstances of her condition, the right to forego the treatment or to have
the treatment discontinued and that the exercise of that right would be lawful
and in pursuance of her constitutional rights.
155. Neither
the requirements of the common good nor public order or morality, in the
circumstances of this particular case, require that the exercise of the
ward’s constitutional rights be restricted.
156. In
so far as it may be relevant I have no doubt but that the treatment being
afforded to the ward, constituted ‘medical treatment’ and not
merely ‘medical care’.
157. I
agree with the statement made by Sir Stephen Brown in the course of his
judgment in
Airedale
N.H.S. Trust v. Bland
[1993]
A.C. 789 at p. 894 where he stated:-
158. In
my judgment, the provision of artificial feeding by means of a nasogastric tube
is ‘medical treatment’.
159. By
virtue of her mental incapacity the ward is unable to exercise that right and
it has been submitted by all the appellants herein, including the Attorney
General that having regard to the right to life of the ward, it was not open to
any person or persons to exercise such right on her behalf.
160. If
such submission were to be correct, the ward, by virtue of her incapacity,
would be deprived of the opportunity to exercise, or have exercised on her
behalf, a right enjoyed by other citizens of the State.
162. All
citizens shall, as human persons, be equal before the law. This shall not be
held to mean that the State shall not in its enactments have due regard to the
differences of capacity, physical and moral, and of social functions.
163. The
loss by an individual of his or her mental capacity does not result in any
diminution of his or her personal rights recognised by the Constitution,
including the right to life, the right to bodily integrity, the right to
privacy, including self-determination, and the right to refuse medical care or
treatment.
164. The
ward is entitled to have all these rights respected, defended, vindicated and
protected from unjust attack and they are in no way lessened or diminished by
reason of her incapacity.
165. In
the circumstances of this ward there is no conflict between the exercise of
these rights and the right to life, which the State is by the Constitution
obliged to respect, defend, vindicate and protect from unjust attack. Her right
to life necessarily implies the right to die a natural death.
166. By
reason of the fact that the ward is a ward of court and the provisions of s. 9
of the Courts (Supplemental Provisions) Act, 1961, the responsibility for the
exercise of and the vindication of these rights rested on the judge assigned in
that behalf by the President of the High Court, in this case the learned trial
judge, Lynch J.
167. In
the exercise of this jurisdiction, the first and paramount consideration is the
well-being, welfare or interests of the ward.
168. As
stated by Lord Hailsham L.C. in
Re
B. (A Minor) (Wardship: Sterilisation)
[1988]
A.C. 199 at p. 202:-
169. There
is no doubt that, in the exercise of its wardship jurisdiction the first and
paramount consideration is the well being, welfare, or interests (each
expression occasionally used, but each, for this purpose, synonymous) of the
human being concerned, that is the ward herself or himself.
170. In
deciding in any given case what is in the best interests of the ward, the court
adopts the same attitude as a responsible parent would do in the case of his or
her own child: the court, exercising the duties of the Sovereign as
parens
patriae
is
not expected to adopt any higher or different standard than that which, viewed
objectively, a reasonable and responsible parent would do.
171. In
addition, in this jurisdiction the court must have regard to the constitutional
rights of the ward and defend and vindicate these rights.
172. Having
considered the transcript of the evidence adduced at the hearing of the
application and the judgment of the learned trial judge thereon, I am satisfied
that he had at all times regard for the constitutional rights involved,
including the rights of the ward, the family and the State and that in
considering the issue “whether it was in the best interests of the ward
that her life should be prolonged by continuance of the particular medical
treatment which she was receiving” he adopted the proper test and
approached the matter from, as he stated, “the standpoint of a prudent,
good and loving parent” and required clear and convincing proof of all
relevant matters before reaching what must be regarded as an awesome decision
to consent to the withdrawal and termination of the abnormal artificial means
of nourishment by tube, thus ceasing to prolong her life to no useful purpose
and allowing her to die.
173. The
true cause of the ward’s death will not be the withdrawal of such
nourishment but the injuries which she sustained on the 26th April, 1972.
174. He
had regard to the condition of the ward, to the fact that the treatment was
intrusive and burdensome and of no curative effect, to the fact that the ward
had only minimal cognitive function, had been in that condition for twenty
three years, to the wishes of the mother and other members of the family, to
the medical evidence and to the submissions by all the parties to the
proceedings.
175. I
can find no fault with the manner in which the learned trial judge exercised
his jurisdiction in this tragic case and as there was ample evidence to support
the conclusion which he reached and the order which he made, I would dismiss
the appeal.
176. This
appeal raises for decision whether we should uphold the decision of the High
Court judge consenting on behalf of the ward to the withdrawal and termination
of the abnormal, artificial means of nourishment by tube, whether by
nasogastric or gastrostomy tube, and whereby he declared that such withdrawal
and termination was lawful and whereby he consented on behalf of the ward to
the non-treatment of infections or other pathological conditions which may
affect the ward, save in a palliative way to avoid pain and suffering, and
declared such non-treatment to be lawful.
177. No
one has cast any doubt on any of the trial judge’s findings of fact, the
inferences he drew from them, his assessment of the witnesses, his findings of
good faith on everyone’s part and the excellence of the medical and
nursing care provided for the ward at the institution to which she was confined.
178. Indeed,
I do not understand that any serious attempt has been made in the course of the
various submissions made in this Court about the judge’s findings on the
applicable law – except those who submit that he should not have made the
orders that he did.
179. The
matter for resolution is of immense moral, legal, medical, ethical and
philosophical importance. Similar cases have been debated throughout the common
law world and, in particular, in the United States of America.
180. Important
as this case is, I believe that we must, nonetheless, abide by the rules we
have set ourselves as an appellate court always to accord great respect to the
findings of the trial judge unless we think he was in error.
181. The
tragic circumstances of the ward have been amply recounted in the trial
judge’s judgment. The judge concluded that the ward is not fully in a
persistent vegetative state but that she is very nearly so and such cognitive
capacity as she possesses is extremely minimal. The condition known as
persistent vegetative state (PVS) has also been amply described in the course
of the trial judge’s judgment as well as in the Chief Justice’s and
other judgments of this Court.
182. That
the High Court had jurisdiction to entertain the instant application is not in
dispute. The historical background concerning the wardship jurisdiction of the
courts has been traced in the judgments of the Chief Justice as well as that of
Blayney J. and needs no recapitulation here.
183. I
add, however, that it would be strange if our courts which are called upon to
pronounce on so many issues touching the welfare of the individual – I
instance the Adoption Acts, the Guardianship of Infants Acts as well as the
Family Home Protection legislation as only prime examples – would not be
regarded as having the necessary jurisdiction, not to say expertise, to
adjudicate on an issue of such paramount importance as is embraced by the
instant case.
184. The
next matter that is not in dispute is that consent to medical treatment is
required in the case of a competent person (cf.
Walsh
v. Family Planning Services Ltd.
[1992]
1 I.R. 496) and, as a corollary, there is an absolute right in a competent
person to refuse medical treatment even if it leads to death I agree with the
trial judge as well as with my colleagues that what is involved in this case
constitutes medical treatment.
185. As
it was vividly described
In
re Conroy
(1985)
98
N.J. 321, (echoing what was said in
Union
Pacific Railway Co. v. Botsford
(1891)
141 U.S. 250):-
186. No
right is held more sacred, or is more carefully guarded by the common law, than
the right of every individual to the possession and control of his own person,
free from all restraint or interference of others, unless by clear and
unquestionable authority of law. . . ‘The right to one’s person may
be said to be a right of complete immunity to be let alone’.
187. In
American law this right is grounded both on common law as well as the
constitutional right of self-determination (otherwise bodily integrity) as well
as being regarded as a privacy right. Similarly, I believe that it would be
correct to describe the right in our law as founded both on common law as well
as the constitutional rights of bodily integrity and privacy. (cf.
Ryan
v. Attorney General
[1965]
I.R.
294 and
Kennedy
v. Ireland
[1987]
I.R.
587).
188. Is
it to be said that by reason of her mental incapacity these rights have been
lost by the ward? I cannot find any constitutional or other rationale for
making such a finding. On the contrary, I believe that it would operate as an
invidious discrimination between the well and the infirm. (Cf.
O’Brien
v. Keogh
[1972]
I.R. 144).
189. I
come then to the central issue in the case. I take the formulation of it from
the judgment that Denham J. will deliver as follows:-
190. A
decision has now to be made whether to continue the medical treatment or not.
To continue the treatment is as much a decision as not to do so. If the
decision is to continue medical treatment, a consent has to be given on behalf
of the ward for the invasive medical treatment. If the decision is to cease the
medical treatment, a consent on behalf of the ward has also to be given.
191. In
resolving that issue it is of the utmost importance to state that we are
deciding this case on a specific set of facts. It must be clear that our
decision should not be regarded as authority for anything wider than the case
with which we are confronted. It is essential, therefore, to state what the
case is
not
about.
192. This
case is not about euthanasia; euthanasia in the strict and proper sense relates
to the termination of life by a positive act. The declarations sought in this
case concern the withdrawal of invasive medical treatment in order to allow
nature to take its course.
193. The
ward may be alive but she has no life at all. Lynch J. found as a fact that
although the ward is not fully P.V.S., she is very nearly so and such cognitive
capacity as she possesses is extremely minimal. Lynch J. continued to state
that:-
194. A
fully P.V.S. person cannot feel pain and has no capacity for pleasure or
displeasure even though they may groan or grimace or cry, especially in
response to painful stimuli, nor have they any realisation whatever of their
tragic situation. This is probably the ward’s state but if such minimal
cognition as she has includes an inkling of her catastrophic condition, then I
am satisfied that that would be a terrible torment to her and her situation
would be worse than if she were fully P.V.S.
195. Thus,
the circumstances of the current case are clearly distinguishable from the
position as regards, for example, a seriously mentally handicapped person. A
mentally handicapped person is conscious of his or her situation and is capable
of obtaining pleasure and enjoyment from life. It is fanciful to attempt to
equate the position of the ward in this case with that of a person whose life
has been impaired by handicap. The analogy is both false and misleading; the
quality of the ward’s life was never in issue; she is not living a life
in any meaningful sense. We are concerned here only with allowing nature to
take its course and for the ward to die with dignity. We are not thereby going
down any slippery slope or stepping into any abyss.
196. It
is the fact that indubitably the ward is alive. All life is sacred. When much
emphasis was placed on the importance our Constitution places on the right to
life in the course of the debate here, I suggested that courts throughout the
civilised world would regard their responsibilities as gravely as we do,
whether or not constitutional provisions were as explicit in various
jurisdictions. And see Article 2 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (Rome, 4th November 1950) and Article 6 of the
International Covenant on Civil and Political Rights (New York, 16th December,
1966).
197. I
move to the concept of death. For those of religious belief, death is not an
end but a beginning. In the submissions at bar on behalf of the committee of
the ward death was said to be part of life – indeed the only certainty in
life. Although, as Bryan MacMahon has written “each person attempts to
mute or cancel the terror of impending death”,
(The
Storyman
by
Bryan MacMahon (1994); Dublin, Poolbeg) in everyone’s subconscious there
is a hope of a peaceful and dignified death. We console the bereaved when a
death occurs unexpectedly if the deceased was spared suffering.
198. In
my judgment, this case is not about terminating a life but only to allow nature
to take its course which would have happened even a short number of years ago
and still does in places where medical technology has not advanced as far as it
has in this country, for example. But now the advance of medical science may
result in rendering a patient a prisoner in a ward from which there may be no
release for many years without any enjoyment or quality of life: indeed without
life in any acceptable meaning of that concept except in the sense that by
means of various mechanisms life is kept in the body. As the Supreme Court of
Arizona said in
Rasmussen
v. Fleming
(1987)
154 Ariz. 207:-
199. Not
long ago the realms of life and death were delineated by a bright line. Now
this line is blurred by wondrous advances in medical technology - advances that
until recent years were only ideas conceivable by such science-fiction
visionaries as Jules Verne and H.G. Wells. Medical technology has effectively
created a twilight zone of suspended animation where death commences while
life, in some form, continues. Some patients, however, want no part of a life
sustained only by medical technology. Instead, they prefer a plan of medical
treatment that allows nature to take its course and permits them to die with
dignity.
200. As
more individuals assert their right to refuse medical treatment, more
frequently do the disciplines of medicine, law, philosophy, technology, and
religion collide. This interdisciplinary interplay raises many questions to
which no single person or profession has all the answers.
201. The
stark dilemma that presents itself for resolution is: given the sanctity of
life; given the right to self-determination and given an incompetent who cannot
herself make a choice, since I hold that an incompetent does not lose the
constitutional right of self-determination she would otherwise have had, how
should the court exercise the choice for her because, as already indicated, a
choice has to be made one way or the other.
203. In
the United States of America this matter has been much litigated throughout the
States. I refer to the most recent decision of an appellate State court (not,
however, the Supreme Court – the patient died before the case could be
brought to the State Supreme Court) –
In
re Fiori
(1995)
652
A.R.
2d. 1350. I do so because Judge Popovich in the course of a very extensive
opinion lists all the cases in the United States in which this problem has been
addressed. They number over fifty. It appears that near judicial unanimity has
been attained in the United States to permit a course similar to that
sanctioned by the learned trial judge in this case.
204. In
the course of his opinion, Judge Popovich elaborates on the methods that have
been invoked by American courts to deal with these cases:-
205. Absent
the existence of a statute on the subject, the various legal precepts relied
upon to authorise the withdrawal of sustenance from a person in a persistent
vegetative state have been reduced to a ‘best interest’ analysis,
‘substituted judgment’ criterion or a ‘clear and
convincing’ evidence standard of proof which draw their strengths from
the federal or state constitutional rights of privacy. [Citations omitted].
206. Equally
applicable to the right of an individual to forego life-sustaining medical
treatment is the common law right to freedom from unwanted interference with
bodily integrity (‘self-determination’) [Citations omitted].
208. Since
the right of self-determination can only be exercised by a person competent to
evaluate her condition, a patient lacking this capacity forfeits her right of
self-determination unless the surrogate decision-maker, standing in the place
of the incompetent, asserts the patient’s preference. This surrogate
decision-making is embodied in this doctrine of substitute judgment. Courts
will rely on the substitute judgment doctrine only when the surrogate
decision-maker demonstrates the incompetent person’s preferences with
reasonable certainty. When the patient expresses a treatment preference prior
to her loss of competence, the court views the surrogate as merely supplying
the capacity to enforce the incompetent’s choice. Thus, a dying
patient’s right of self-determination out-weighs the rights of the
patient’s family, physician, or other care provider to base a treatment
determination on their individual interests or ethical imperatives. The
irreversible incompetent’s right of self-determination also outweighs the
state’s interest in preserving life, preventing suicide, protecting third
party dependents of the dying patient, and preserving the ethical integrity of
the medical profession.
209. For
myself, I find it impossible to adapt the idea of the “substituted
judgment” to the circumstances of this case and, it may be, that it is
only appropriate where the person has had the foresight to provide for future
eventualities. That must be unusual (if it ever happens) at the present time;
with increased publicity in regard to these type of cases it may get more
common. For now, I prefer to rest my judgment by deciding what is in the best
interests of the ward.
210. That
means I come back to deal with the choice that must be made between continuing
life or allowing nature to take its course.
211. In
the course of his powerful dissent in
Cruzan
v. Director Missouri Department of Health
(1990)
497 U.S. 261, dealing with invasive medical treatment in a case such as this,
Justice Stevens said:-
212. It
is perhaps predictable that courts might undervalue the liberty at stake here.
Because death is so profoundly personal, public reflection upon it is unusual.
As this sad case shows, however, such reflection must become more common if we
are to deal responsibly with the modern circumstances of death. Medical
advances have altered the physiological conditions of death in ways that may be
alarming. Highly invasive treatment may perpetuate human existence through a
merger of body and machine that some might reasonably regard as an insult to
life rather than as its continuation. But those same advances, and the
reorganisation of medical care accompanying the new science and technology,
have also transformed the political and social conditions of death: People are
less likely to die at home, and more likely to die in relatively public places,
such as hospitals or nursing homes.
213. Ultimate
questions that might once have been dealt with in intimacy by a family and its
physician have now become the concern of institutions. When the institution is
a state hospital, as it is in this case, the government itself becomes involved.
214. The
learned trial judge concluded that the State undoubtedly has an interest in
preserving life but this interest is not absolute in the sense that life must
be preserved and prolonged at all costs and no matter what the circumstances.
He went on to say:-
215. Death
is a natural part of life. All humanity is mortal and death comes in the
ordinary course of nature and this aspect of nature must be respected as well
as its life-giving aspect. Not infrequently, death is welcomed and desired by
the patient and there is nothing legally or morally wrong in such an attitude.
A person has a right to be allowed to die in accordance with nature and with
all such palliative care as is necessary to ensure a peaceful and dignified
death.
216. I
agree with this reasoning and with the importance the judge accorded to the
wishes of the ward’s family (and in which regard I endorse everything he
had to say about the extraordinary love and devotion that they have lavished on
the ward) and for the reasons that I have set out I would regard the best
interests of the ward to be that the choice that should be made is that nature
should take its course in this case without artificial means of preserving what
technically is life, but life without purpose, meaning or dignity.
218. The
background to this case has been fully set out in the judgments of my
colleagues. The ward is a young woman who for over twenty years has been in a
near persistent vegetative state (P.V.S.). She receives artificial nutrition
and hydration through a gastrostomy tube which goes through her abdomen into
her stomach. If this tube were removed she would die in a matter of weeks. If,
however, this artificial nutrition and hydration is continued, she may live for
many years.
219. This
young woman is a ward of court. Her committee (who is her mother) and all her
brothers and sisters are anxious that artificial nutrition and hydration should
now cease and that she should be allowed to die.
220. Lynch
J. in the High Court made an order which, as the judge assigned in that behalf
by the President of the High Court, he had jurisdiction to make. The principal
part of his order was as follows:-
221. Doth
hereby consent on behalf of the ward to the withdrawal and termination of the
abnormal artificial means of nourishment by tube, whether nasogastric or
gastrostomy tube, and doth declare that such withdrawal and termination are
lawful.
222. An
appeal against this order by the Attorney General, the institution where the
ward has been, and still is, an inmate and the General Solicitor for Wards of
Court as guardian
ad
litem,
has
now been heard by this Court. A number of cases have been cited but they are
not binding in this jurisdiction and I do not propose to attempt to analyse
them with a view to seeking any common principle. There is, in any event, the
distinguishing factor that we have in this jurisdiction a written Constitution.
223. Reliance
was placed on Article 40, s. 1, which provides that “All citizens shall,
as human persons, be held equal before the law”. Reliance was also placed
on Article 40, s. 3, sub-s. 1, which provides that “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,” and Article 40, s. 3,
sub-s. 2, which provides that “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.
224. If
this appeal were to succeed on any of these Constitutional provisions,
particularly Article 40, s. 3, sub-s. 2, it might be thought that the Court was
of opinion that the members of the family of the ward by seeking the cessation
of artificial nutrition and hydration were attempting to launch an
“unjust attack” upon the life of the ward. I fully accept, however,
that this is very far from being their motive and that they are truly activated
by the highest possible feelings of deep concern for the condition of the ward
and for what they genuinely believe would be in her best interest. It should be
mentioned at this stage that there is agreement by all parties that, insofar as
there can be a choice regarding the withdrawal of sustenance, the paramount
factor must be the best interests of the ward.
225. The
method of providing sustenance is intrusive and would, if the ward were of
sound mind, require her consent. She is not, however, capable of giving such
consent nor, on the other hand, is she capable of refusing consent. It was
argued that the Court in attempting to decide whether or not to consent, would
be entitled to have regard to what the ward herself would have been likely to
decide if she had control of the situation. There was little or no useful
evidence, however, in this regard. The views of the family would also be
relevant but the final decision would lie with the Court.
226. What
principles or factors should guide the Court in determining the best interests
of the ward? It appeared to be tacitly accepted that a cessation of the method
of nutrition and hydration would be wholly permissible if the ward had not
cognitive function. In truth, she has almost none. The learned trial judge
found that she was “in a condition which is nearly, but not quite, what
is known as persistent or permanent vegetative state (P.V.S.)”. His
actual finding in this regard was as follows:-
227. She
has a minimal capacity to recognise, for example, the long established nursing
staff and to react to strangers by showing distress. She also follows or tracks
people with her eyes and reacts to noise, although the latter is mainly, if not
indeed, wholly reflex from the brain stem and a large element of reflex eye
tracking is also present in the former which, however, also has some minimal
purposive content.
228. It
was not contended that a degree of cognitive function, however minimal, ought
to preclude the Court from consenting to the withdrawal of the tube. It
appeared to be conceded that consent could properly be given if the intrusive
method was painful and burdensome. The evidence, however, would not justify
such a finding nor was such a finding made. I also reject any argument based on
an allegation that the ward is terminally ill. Unless the tube is removed there
is an undisputed possibility that she may live for many years.
229. The
removal of the tube would, as already stated, result in death within a short
period of time. It matters not how euphemistically it is worded. The inevitable
result of removal would be to kill a human being. In view of the constitutional
guarantees it would require (and I deem the right to life to be highest in the
hierarchy of rights) a strong and cogent reason to justify the taking of a life.
230. As
previously stated, this is not a case of no cognitive function. Such function
is present, however minimal and however close to P.V.S. If slightly more
cognitive function existed, would a right to withdraw sustenance still be
claimed to be permissible? Where would the line be drawn? Cognition in a human
being is something which is either present or absent and should, in my opinion,
be so recognised and treated. Any effort to measure its value would be dangerous.
231. The
ward’s condition has been described as “horrendous” and has
been a source of deep distress to her family for a long period of time. Many
other families endure great distress when a member continues to survive
notwithstanding great physical or mental handicaps. This in no way lessens the
sympathy which one inevitably feels for this particular family but regretfully,
in my opinion, does not justify the orders made in the case.
233. The
ward is a woman now aged forty-five. At the age of twenty-two, in the course of
a minor surgical procedure for which she had been given a general anaesthetic,
she had three heart arrests which caused her to suffer gross brain damage. As a
result, she has since then been in a near persistent vegetative state –
P.V.S. She has been kept alive by artificial nutrition and hydration, at first
delivered by a nasogastric tube, and now for the last three years through a
gastrostomy tube going directly through the wall of her abdomen into her
stomach. Were it not for this artificial nutrition and hydration, the ward
would die.
234. The
ward’s mother, who is her committee, and all her brothers and sisters,
take the view that this artificial feeding should now cease and that the ward
should be allowed to die. She, accordingly, brought a motion to the High Court
in March of this year seeking,
inter
alia:
235. This
motion was heard on oral evidence over five days in the following month. The
parties represented at the hearing were the committee of the ward, the
institution which is caring for the ward, the Attorney General and the General
Solicitor for Wards of Court as guardian
at
litem
of
the ward. In a reserved judgment delivered on the 5th May, 1995
,
Lynch
J. granted the order sought by the ward’s mother. The material part of
his order was as follows:-
237. Separate
appeals were brought against this order by the institution, the Attorney
General and the guardian
ad
litem
of
the ward, and on behalf of the committee and family of the ward a notice was
served to vary the judgment in certain minor respects.
238. As
appears from the part of the order of the High Court cited above, Lynch J., had
been assigned to hear the case by the President of the High Court so, in
hearing the case he was exercising the jurisdiction vested in the President of
the High Court by s. 9 of the Courts (Supplemental Provisions) Act, 1961. That
section provides as follows:-
239. This
section may be summarised by saying that there is now vested in the High Court,
and exercisable by the President of the High Court or by a judge of the High
Court assigned by him, the jurisdiction formerly exercised by the Lord
Chancellor of Ireland in lunacy and minor matters. And it was this jurisdiction
which was exercised by Lynch J. in making the orders which he did. The first
thing that has to be done, accordingly, in considering this appeal is to
examine the nature of the jurisdiction formerly exercised by the Lord
Chancellor of Ireland and the manner in which it was exercised.
240. Lord
Ashbourne L.C. described the nature of the jurisdiction in the case of In
re
Birch
(1892)
29 L.R. Ir. 274 at p. 275:-
241. This
is a case of much importance, and involves a consideration of the duties of the
Lord Chancellor in Lunacy. His jurisdiction depends on the Queen’s
Sign-manual, which delegates to him an authority personal to the Sovereign
herself over the persons and estates of idiots and lunatics. From the earliest
times this jurisdiction had been recognized as forming part of the royal
prerogative - as a high duty in the Sovereign in his capacity as
parens
patriae:
its
exercise has from time to time been regulated by various enactments, but no
statute has in anywise curtailed the powers delegated to the Lord Chancellor by
virtue of the Sign-manual. The exercise of this great personal duty was not
inappropriately entrusted to the Lord Chancellor, who was frequently in former
times some great ecclesiastic, and who has always been one of the greatest
officials of the realm.
242. The
terms of the Queen’s letter in Lunacy expressly state the nature of the
jurisdiction it confers. It commences: ‘Whereas it belongeth unto us in
right of our royal prerogative to have the custody of idiots and lunatics and
their estates in that part of the United Kingdom called Ireland... We
therefore... have thought fit to entrust you with the care and commitment of
the custody of the idiots and lunatics and their estates.’
243. These
words amount to an express delegation by the Crown under the Sign-manual of its
prerogative jurisdiction in Lunacy to the Lord Chancellor. The single purpose
of the Crown is to benefit this afflicted class by confiding them to the care
of its highest Judge and one of its greatest officials. There is no restriction
by which the jurisdiction of the Lord Chancellor is confined to any particular
section of this afflicted class. The parental care of the Sovereign extends
over all idiots and lunatics, whether so found by legal process or not. That
high prerogative duty is delegated to the Lord Chancellor, and there is no
statute which in the slightest degree lessens his duty or frees him from the
responsibility of exercising that parental care and directing such inquiries
and examinations as justice to the idiots and lunatics may require.
244. Under
the Queen’s Sign-manual, the Lord Chancellor is in-trusted with the care
and commitment of all idiots and lunatics in Ireland. The power given by the
Queen’s Sign-manual creates a high and responsible duty in the Lord
Chancellor towards these afflicted persons, calling on him to act on their
behalf whenever it may come to his notice that their liberty or happiness
require his intervention, and this beneficent jurisdiction is not confined to
those so found by process of law, or narrowed to any special class.
245. It
is clear from these passages that the jurisdiction conferred on the Lord
Chancellor was primarily a duty and responsibility to care for all persons who
were
non
compos mentis
and
that in the performance of that duty and the exercise of that responsibility
the Lord Chancellor had delegated to him an authority personal to the Sovereign
herself over the person and estates of idiots and lunatics. This authority
clearly gave to the Lord Chancellor extremely wide powers which, as Lord
Ashbourne states, had never been curtailed by statute, and they are to be
exercised whenever the liberty or happiness of persons
non
compos mentis
required
his intervention.
246. It
is this jurisdiction which was exercised by Lynch J. in making the orders
appealed against, and the sole question for this Court is whether the orders or
any of them should be set aside on the ground that, in making them, Lynch J.
committed some error in law. Before dealing with the submissions of the
appellants that the decision of the learned trial judge was wrong in law, I
should set out for completeness the findings of facts made by the learned trial
judge which have not been disputed:-
247. Over
two decades ago the ward, who was then 22 years old, underwent a minor
gynaecological operation under general anaesthetic. During the procedure she
suffered three cardiac arrests resulting in anoxic brain damage of a very
serious nature. Since that catastrophe the ward has been completely dependent
on others, requiring total nursing care. She is spastic as a result of the
brain damage. Both arms and hands are contracted. Both legs and feet are
extended. Her jaws are clenched and because she has a tendency to bite the
insides of her cheeks and her tongue, her back teeth have been capped to
prevent the front teeth from fully closing. She cannot swallow, she cannot
speak, she is incontinent.
248. In
the first five or six months after the catastrophe, there were minimal signs of
recovery which unfortunately did not continue, but, if anything, faded with the
passing years. For some twenty years she was fed through a nasogastric tube.
Generally, but especially in the later years, she seemed to find this
distressing and it was replaced by a gastrostomy tube in April, 1992, which
required the administration of a general anaesthetic. Since then she has been
fed through the gastrostomy tube with much greater ease and success. This tube
became detached in December, 1993, and a new tube was inserted which came out
the next day and had to be reinserted the following day under general
anaesthetic.
249. The
ward is, of course, bedridden. She is in a condition which is nearly, but not
quite, what in modern times has become known as persistent or permanent
vegetative state (P.V.S.)...
250. In
the present case the ward’s heart and lungs function normally. Assuming
that she is adequately furnished with nutrition and hydration (nourishment),
her digestive system operates normally as do her bodily functions, although
bowel movements require some assistance, but as she cannot swallow and as her
teeth are spastically clenched together, she cannot receive nourishment in the
normal way and as already stated, is and has had to be tube fed since the
catastrophe. Assuming that she continues to be nourished by tube, she could
live for many years but of course she might also die in the short term if she
developed some infection such as pneumonia, unless it was treated aggressively
with antibiotics.
251. The
ward has no capacity for speech or for communicating. A speech therapist failed
to elicit any means of communication. She has a minimal capacity to recognise,
for example, the long established nursing staff and to react to strangers by
showing distress. She also follows or tracks people with her eyes and reacts to
noise, although the latter is mainly, if not indeed, wholly reflex from the
brain stem and a large element of reflex eye tracking is also present in the
former which, however, also has some minimal purposive content...
252. I
have no doubt as to the veracity and reliability of the family’s evidence
and marrying it with the evidence of the carers, I am satisfied that although
the ward is not fully P.V.S., she is very nearly so and such cognitive capacity
as she possesses is extremely minimal. A fully P.V.S. person cannot feel pain
and has no capacity for pleasure or displeasure even though they may groan or
grimace or cry, especially in response to painful stimuli, nor have they any
realisation whatever of their tragic situation. This is probably the
ward’s state but if such minimal cognition as she has includes an inkling
of her catastrophic condition, then I am satisfied that that would be a
terrible torment to her and her situation would be worse than if she were fully
P.V.S. There is no prospect whatsoever of any improvement in the condition of
the ward.
253. Both
Mr. Rogers for the Attorney General and Mr. Kelly for the guardian
ad
litem
submitted
that the removal of the gastrostomy tube would be an unjust attack on the
ward’s life and so contrary to Article 40, s. 3, sub-s. 2, of the
Constitution. They differed on the Court’s right to consent on behalf of
the ward to the removal of the tube. Mr. Rogers submitted that the Court had no
jurisdiction to do this: Mr. Kelly submitted on the other hand that while the
Court had jurisdiction it would be a breach of the ward’s constitutional
rights to give consent. They also submitted that the ward’s personal
right to life under Article 40, s. 3, subs. 1 would be breached by consent
being given.
254. In
my opinion these submissions must be rejected. The jurisdiction being exercised
by the learned trial judge as
parens
patriae
imposed
on him both a duty and responsibility to care for the welfare and happiness of
the ward. In carrying out this duty and exercising this responsibility in the
difficult particular circumstances obtaining, one of the things he had to weigh
up was whether it was for the benefit of the ward that her life should continue
to be prolonged. He also had to take into consideration the ward’s right
to die. Where a person who is
compos
mentis
has
a condition which, in the absence of medical intervention, will lead to death,
such person has a right in law to refuse such intervention. It seems to me that
the learned trial judge, in coming to his conclusion, could not be said to have
failed to respect the ward’s right to life and a
fortiori,
could
not be accused of having made an unjust attack on the ward’s life. He
said in his judgment:-
255. I
have come to the conclusion that the benefit to the ward of sustaining her life
by the present abnormal artificial means of nourishment is far outweighed by
the burdens of so sustaining life with absolutely no prospect of any
improvement in the ward’s condition. Accordingly, I find that it is in
the best interest of the ward that the abnormal artificial nourishment, whether
by nasogastric or by gastrostomy tube, should be terminated, thus ceasing
artificially to prolong her life to no useful purpose and allowing her to die
in accordance with nature, with all such palliative care and medication as is
necessary to ensure a peaceful and pain free death.
256. In
my opinion the learned trial judge clearly complied with the constitutional
obligation to respect the ward’s life by addressing very fully the
question of whether or not it was of any benefit to the ward to prolong her
life given the burdens on the ward involved in doing so and the fact that no
improvement in the ward’s condition can be expected.
257. I
would add that in my opinion there can be no doubt that the learned trial judge
had jurisdiction to consent on behalf of the ward to the withdrawal of the
gastrostomy tube. The Lord Chancellor would clearly have had such jurisdiction
under the Sign-manual in view of having delegated to him the authority of the
Sovereign. Furthermore, it would be wholly unjust and unreasonable, and totally
against the interests of the ward or of any person in a similar situation to
the ward, that the Court should be powerless in such a situation.
258. On
behalf of the institution it was submitted that the learned trial judge had
been wrong in law in holding that the provision of nourishment to the ward by
means of a gastrostomy tube was a form of medical treatment and was abnormal.
It was argued that the nutrition and hydration were simply the equivalent of
food and drink which everybody required for survival, and that the ward had
been tube fed now for so long that this method had become normal.
259. These
findings of the learned trial judge to which objection is taken were inferences
from primary facts and in my opinion were inferences which he was perfectly
entitled to draw. His conclusion in regard to the artificial feeding being
medical treatment is supported by clear expressions of opinion in
Cruzan
v. Director Missouri Department of Health
(1990)
497 U.S. 261 by Brennan and O’Connor JJ., two of the judges in the United
States Supreme Court, and a further two judges, Marshall and Blackmun JJ.,
concurred in the opinion of Brennan J. Brennan J. said in his judgment:-
260. No
material distinction can be drawn between the treatment to which Nancy Cruzan
continues to be subject – artificial nutrition and hydration – and
any other medical treatment. . . The artificial delivery of nutrition and
hydration is undoubtedly medical treatment. The technique to which Nancy Cruzan
is subject – artificial feeding through a gastrostomy tube –
involves a tube implanted surgically into her stomach through incisions in her
abdominal wall. It may obstruct the intestinal tract, erode and pierce the
stomach wall, or cause leakage of the stomach’s contents into the
abdominal cavity.
262. The
State’s artificial provision of nutrition and hydration implicates
identical concerns. Artificial feeding cannot readily be distinguished from
other forms of medical treatment.
263. In
addition, Rehnquist C.J., who delivered the majority judgment of the court,
clearly treated artificial nutrition and hydration as constituting medical
treatment.
264. Once
it is accepted that the learned trial judge was entitled to infer that the
artificial nutrition and hydration was medical treatment, it follows that he
was also entitled to draw the inference that it was abnormal. Normal food and
drink could never be categorised as medical treatment.
265. Counsel
for the institution laid great stress on the fact that the ward has some
cognitive capacity. He argued that this put the ward’s case in a
completely different category to the case of
Airedale
NHS. Trust v. Bland
[1993] AC 789, but the learned trial judge did not follow blindly the decision in
that case. What he did was to adopt the test proposed by Lord Goff, i.e.
“whether it is in the best interests of the patient that his life should
be prolonged by the continuance of this form of medical treatment or
care”, and applied that to the special facts of the ward’s case.
And one of the facts he had found was that the ward was not fully P.V.S., but
was very nearly so, and such cognitive capacity as she possessed was extremely
minimal.
266. The
evidence of the doctor caring for the ward in the institution was that even if
the ward was fully P.V.S. this would make no difference to his attitude. His
concern, and that of the nursing staff, would still be to continue to care for
the ward. One cannot but admire and be grateful that such high standards of
medical care are available for P.V.S. patients. But the question remains in law
as to whether it is right in every case that it should be availed of. Each case
is special and the decision of the High Court in the present case in exercise
of its special jurisdiction over persons
non
compos mentis
is
confined to the particular facts of the case.
267. Before
concluding there is one further matter to which I wish to refer. The learned
trial judge clearly treated the case as being a
lis
inter partes.
He
referred to the onus of proof being on the committee and he held that the
standard of proof was that the evidence should be clear and convincing. It
seems to me to be doubtful, however, if this approach was correct. In a
lis
inter partes,
the
proceedings are adversarial and one consequence of this is that the court is
confined to deciding the case on the material placed before it by the parties.
It cannot of its own motion seek additional information or require any
particular witnesses to be called. But such is not the position of the High
Court when exercising the former jurisdiction of the Lord Chancellor as seems
clear from the following statement, already cited earlier, from the judgment of
Lord Ashbourne L.C. in
In
re Birch
(1892)
29 L.R. Ir. 274, at page 276:-
268. That
high prerogative duty is delegated to the Lord Chancellor, and there is no
statute which in the slightest degree lessens his duty or frees him from the
responsibility of exercising that parental care and directing such inquiries
and examinations as justice to the idiots and lunatics may require.
269. If
in the present case the learned trial judge had wanted to have a further
examination made of the ward, he would have been entitled to direct one. He
could not have done so in a
lis
inter partes.
In
the circumstances it seems to me that there was no need for the learned trial
judge to deal with the onus of proof or the standard of proof but it must be
added that the fact that he did so does not in any way affect the decision at
which he arrived.
270. I
am satisfied that the learned trial judge correctly exercised the jurisdiction
vested in him and I would dismiss this appeal.
271. This
case concerns a patient who is a ward of court. It is an appeal against a
judgment of the High Court delivered on the 5th May, 1995; and an order
perfected on the 10th May, 1995, which stated,
inter
alia,
that
Lynch J. being the judge assigned in that behalf by the President of the High
Court:-
272. The
order was sought by the family of the ward of court. The decision of the High
Court has been appealed by the Attorney General, the institution wherein the
ward is being cared, and the guardian
ad
litem
of
the ward. The family of the ward have sought to vary the judgment (a) insofar
as it determines the standard of proof, and (b) insofar as it limits the
authority of the family.
273. The
ward has been placed in her current state by application of advanced medical
science. Were it not for this application she would not have long survived a
catastrophe over 20 years ago. The case illustrates the problems arising out of
modem medical technology and consequent legal issues. These matters have not
been addressed by the Oireachtas so it falls to be decided by this Court in
accordance with the Constitution and the common law.
274. The
facts as found by the learned trial judge may be summarised as follows. In
1972, when she was aged 22, the ward suffered brain damage as a result of
cardiac arrests during a minor gynaecological operation. That catastrophe has
resulted in her being completely dependent on others, requiring total nursing
care. She is spastic, both arms and hands are contracted and her legs and feet
are extended, her jaws are clenched, and, to protect her from biting herself,
her back teeth have been capped to prevent the front teeth closing fully. She
cannot swallow or speak. She is incontinent. In the first few months after the
catastrophe there were minimal signs of recovery which then faded.
275. The
ward’s heart and lungs function normally. If she is given special food
her body absorbs the nourishment normally, although she has to be aided with
bowel movements. As she cannot swallow, and as her teeth are spastically
clenched together, she cannot receive nourishment in the normal way and thus
has been tube fed since the catastrophe. For approximately 20 years she was fed
by a nasogastric tube which she seemed to find irritating or distressing and
pulled out many times. In 1992 it was replaced under general anaesthetic by a
gastrostomy tube. Since then she has been fed by this method. The gastrostomy
tube became detached and was reinserted under general anaesthetic in December,
1993. Assuming she continues to be tube fed she could live for many more years,
but she also might die if she developed an infection and it was not treated
with antibiotics.
276. The
ward has no capacity to communicate. She cannot speak. A speech therapist
failed to elicit any means of communication. She has a minimal capacity to
recognise long established nursing staff and to react to strangers by showing
distress. She tracks people with her eyes and reacts to noise although the
latter is mainly, if not wholly, reflex from the brain stem. The eye tracking
also represents brain stem reflex with minimal purposive content.
277. The
ward’s family state that in over 20 years of visiting her they have never
detected any signs of recognition nor efforts at communication by her. The
ward’s mother disagreed with evidence that the ward had any cognition. It
was her evidence that in over two decades of visiting she got no response
whatsoever from the ward, that the ward just stares and there is nothing in it
unless it be “please let me go”. It was her view that the ward was
in a horrendous situation.
278. An
issue before the High Court was whether the ward was in a persistent vegetative
state (P.V.S.). The condition was defined by Sir Thomas Bingham, Master of the
Rolls, Court of Appeal in England in
Airedale
NHS. Trust v. Bland
[1993] AC 789 (hereinafter referred to as the
Bland
case)
at p. 806 as:-
279. P.V.S.
is a recognised medical condition quite distinct from other conditions
sometimes known as ‘irreversible coma’, ‘the
Guillain-Barré syndrome’, ‘the locked-in syndrome’ and
‘brain death’. Its distinguishing characteristics are that the
brain stem remains alive and functioning while the cortex of the brain loses
its function and activity. Thus the P.V.S. patient continues to function. But
although his eyes are open, he cannot see. He cannot hear. Although capable of
reflex movement, particularly in response to painful stimuli, the patient is
incapable of voluntary movement and can feel no pain. He cannot taste or smell.
He cannot speak or communicate in any way. He has no cognitive functions and
can thus feel no emotion, whether pleasure or distress.
280. I
adopt this as an appropriate definition of P.V.S. Many of the cases cited to
this Court, and referred to in this judgment, relate to persons in a P.V.S.
282. I
have no doubt as to the veracity and reliability of the family’s evidence
and marrying it in with the evidence of the carers, I am satisfied that
although the ward is not fully P.V.S., she is very nearly so and such cognitive
capacity as she possesses is extremely minimal. A fully P.V.S. person cannot
feel pain and has no capacity for pleasure or displeasure even though they may
groan or grimace or cry, especially in response to painful stimuli, nor have
they any realisation whatever of their tragic situation. This is probably the
ward’s state but if such minimal cognition as she has includes an inkling
of her catastrophic condition, then I am satisfied that that would be a
terrible torment to her and her situation would be worse than if she were fully
P.V.S. There is no prospect whatsoever of any improvement in the condition of
the ward.”
283. There
was no appeal against those findings of fact of the learned trial judge as to
the ward’s condition, and they stand.
284. The
ward’s family is a loving family. The members have continued, over the
last 23 years, to visit her and treat her as a family member. Her father has
died since the catastrophe, but there was evidence from her mother, her sisters
and brothers. All support the application. The family’s
bona
fides
was
not in issue, Lynch J. found:-
285. In
fact no issue as to the
bona
fides
of
the family arises in this case for decision. It was accepted by all the parties
and I accept that all the members of the family are completely
bona
fide
and
wish that the course which they propose be followed only because they honestly,
and indeed fervently, believe that that course is in the true best interests of
the ward.
286. The
first issue to be determined is whether the Court has jurisdiction in this
case. I am satisfied that it has and that it is a jurisdiction
parens
patriae.
I
agree with the judgments of the Chief Justice and Blayney J. which consider
this matter comprehensively.
287. The
Attorney General, the institution in which the ward is placed currently, and
the Solicitor General as guardian
ad
litem
of
the ward appealed from the decision of the High Court. The family sought a
variation in the order.
288. Mr.
Hanratty appeared on behalf of the institution. No order was made by the High
Court against the institution, thus, matters regarding it were not in issue.
289. He
agreed that he did not have to go beyond Lynch J.’s decision of minimum
cognitive function. He submitted that the ward was in an entirely different
situation to either Anthony Bland
(Airedale
NHS. Trust v. Bland
[1993]
A.C. 789) or
In
re Quinlan
[1976] 355
A.
2d. 647. He argued that life is a light, that her life may not have the same
luminosity as other people’s but that we are not entitled to say, just
because it is not so luminous, that her light is not sufficient.
290. He
submitted that Article 40 was a protection of the ward’s most treasured
right, her right to life. The right to life was at the top of the hierarchy of
rights. In this case, there is a conflict between the right to life on the one
hand, and, on the other hand, the right to privacy and bodily integrity. Where
it is not possible to harmonise conflicting rights there is a necessity to
apply a priority of rights and this must be examined both in relation to the
individual and the general welfare of society. In the hierarchy of rights,
under the Constitution, the right to life is superior to the right of privacy
and the right of bodily integrity.
291. He
stated that in circumstances where the medical means necessary to prolong life
constitute a gross or disproportionate interference with a person’s right
to privacy, and/or bodily integrity and/or a right to die in comfort and with
dignity, then these rights may take precedence over the right to life. In such
circumstances the State’s obligation to vindicate a person’s right
to bodily integrity, and/or privacy and/or right to die in comfort and with
dignity, may take precedence over the right to life. In such circumstances the
State’s obligation to vindicate a person’s right to bodily
integrity, and/or privacy and/or right to die in comfort and with dignity, is
greater than its obligation to vindicate the person’s right to life. What
constitutes a gross or disproportionate interference with a person’s
right to bodily integrity is a question of fact to be determined by reference
to the circumstances of each particular case. The provision of nutrition and
hydration by a nasogastric tube or a gastrostomy is, on the evidence submitted,
a simple medical procedure. It does not constitute such a gross or
disproportionate interference with a person’s right to bodily integrity
and/or right to die in comfort and with dignity as would justify these rights
taking precedence over the right to life.
292. He
submitted that the treatment and care, as outlined in the evidence, is not a
burden on, nor causes discomfort to, nor is disproportionate to, the ward.
Thus, the ward’s right to life has precedence over her other rights.
293. He
submitted that this Court must formulate the correct question to answer. He
said it was not the question posed by Lord Goff in
Airedale
N.H.S. Trust v. Bland
A.C. 789 at p. 868 of the report:-
294. The
question is whether the doctor should or should not continue to provide his
patient with medical treatment or care which, if continued, will prolong his
patient’s life.
297. He
said there were two stages to the test: First, are there any circumstances in
which the life of a human person with cognitive function can be taken lawfully?
He said that the answer to that would be in the affirmative. Secondly, is this
one of those cases? He submitted that it was not.
298. Mr.
Hanratty said that there may be circumstances where there is clear and
unambiguous evidence of an anticipatory direction by the patient, but that the
court would have to be satisfied beyond reasonable doubt; in this case there
was no such evidence. Mr. Hanratty agreed that the ward had a right of choice,
but he submitted also that she had lost the right by reason of her incapacity.
299. He
submitted that the best interests test was not the right test – it had to
be a constitutional test. He submitted that the starting point for the test is
in Article 40, s. 3, sub-s. 1, and Article 40, s. 3, sub-s. 2. He accepted that
the ward has a human life with cognition and that there were circumstances in
which such a life can be lost. He believed that this was not one of them. There
were circumstances where the burden of treatment was such that it is
permissible. If the treatment necessary to preserve life were such an intrusion
on her then the issue might arise, but that that was not the case here. Here it
was the other way: the burden of treatment was necessary to sustain life. It
was submitted that nothing that was being done to the ward was burdensome to
her: that nothing that was being done to her causes her distress. Mr. Hanratty
said the question to be answered was:-
300. Am
I absolutely satisfied that the burden of treatment to keep her alive is
sufficient to take away this person’s life? Am I satisfied beyond all
reasonable doubt?
301. He
submitted that on the evidence the Court could not be so satisfied. The Court
has to find a balance, conscientiously and, in particular, with the view to
protecting life.
302. It
was submitted that in the case of a patient who is not competent to decide
matters for his/herself, it is a matter to be decided by “an objective
medical standard” test which should include the following considerations:-
303. He
submitted that where the incapacitated patient is a ward of court, the decision
should be made by the court applying the above test. Where the incompetent
patient is not a ward of court the decision should be made by the medical
attendants, carers and family together. If they are unanimous that a form of
treatment should not be continued, they are competent to make such a decision
and carry it out in accordance with law. If there is no unanimous agreement,
then an application should be made to court for directions. These measures are
necessary to protect and vindicate the life of the incapacitated person.
304. Mr.
Kelly submitted that the essence of the case was that one citizen was seeking
the authority of the State through the court to terminate the life of another
citizen. He pointed to the wealth of medical evidence in the case and to the
fact that the doctors did not agree and that it was for the court to make the
decision.
305. He
submitted that this Court could not apply a quality of life test: that that
would be a slippery slope. On the issue of the feeding of the ward, he
submitted that the nutrition and hydration should be continued until there are
compelling medical reasons not to, and that such compelling reasons do not
exist in this case. This Court must have regard not only to the
particular
citizen
but also
all
citizens.
That in this case, the Court can vindicate and protect not only the life of the
ward but that of all its citizens by drawing a line which not only recognises
the fundamental humanity of the ward but also protects and vindicates the lives
of those citizens not before the Court. The line can be drawn on the basis that
it could not amount to a vindication of life to require or allow the cessation
of basic nutrition and hydration for the ward in circumstances where:-
306. He
submitted that it would be very wrong to assume, because of the very serious
limitation of the ward’s mental and physical capacity, that she is
suffering pain or indignity, or that she would prefer to die. It is simply not
possible to make this judgment. She should continue to be given all necessary
sustenance and treatment to maintain her life by whatever means are most
appropriate in terms of her comfort and welfare.
307. Mr.
MacEntee on behalf of the family, submitted that this case turns on the meaning
of the word “life” in Article 20. The process of dying belongs to
life. The ward is alive but what is sought is to have the permission of the
Court to allow the ward to proceed with her life in its dying aspect.
Unlawfully and unjustifiably she is being prevented from completing her life by
dying. The ward, as any other citizen, has a right to privacy, the right to
autonomy. The status of the ward did not diminish her rights. The right to life
is the right to continue life to the point of dying unless there is consent to
medical intervention. That there is no difference between the rights of the
sentient and insentient but that one must look to a device to give a voice to
the insentient. He also argued that there has been medical intervention and as
a result of that the ward is not terminally ill, but that if it were not for
the medical treatment she would be terminally ill. That she had been placed in
a circular situation. He submitted that the decision of the High Court should
be upheld.
308. The
onus of proof lies on the family, who have brought this application. Lynch J.
concluded that the proper standard of proof is that the evidence should be
clear and convincing. There are two standards of proof: beyond all reasonable
doubt or on the balance of probability. It has been noted in fraud cases that
the burden should not be:-
309. In
this case, the onus rests on the family to prove their case on the balance of
probabilities, but the Court should not draw its conclusions lightly or without
due regard to all the relevant circumstances, including the consequences for
the ward, the family and the carers involved.
310. The
ward and her family profess the Roman Catholic faith. Great care has been taken
by the mother of the ward to ensure that no steps are taken contrary to the
family’s faith. Evidence was given on their behalf by two theologians.
This is a court of law, and the Constitution and law are applied: not moral
law. However, the religious beliefs of the ward and her family are one of
several factors for the Court to consider when evaluating the
bona
fides
of
the family and as Lynch J. said:-
311. The
Court has not been directed to any precedent on the issue in this jurisdiction.
Reference has been made to cases in other jurisdictions which, although useful,
have only a limited value as:
312. Medical
treatment may not be given to an adult person of full capacity without his or
her consent. There are a few rare exceptions to this e.g., in regard to
contagious diseases or in a medical emergency where the patient is unable to
communicate. This right arises out of civil, criminal and constitutional law.
If medical treatment is given without consent it may be trespass against the
person in civil law, a battery in criminal law, and a breach of the
individual’s constitutional rights. The consent which is given by an
adult of full capacity is a matter of choice. It is not necessarily a decision
based on medical considerations. Thus, medical treatment may be refused for
other than medical reasons, or reasons most citizens would regard as rational,
but the person of full age and capacity may make the decision for their own
reasons.
313. If
the patient is a minor then consent may be given on their behalf by parents or
guardians. If the patient is incapacitated by reason other than age, then the
issue of capacity to consent arises. In this instance, where the patient is a
ward of court, the court makes the decision.
314. The
requirement of consent to medical treatment is an aspect of a person’s
right to bodily integrity under Article 40, s. 3 of the Constitution, which
right was first recognised by Kenny J. in
Ryan
v. Attorney General
[1965]
I.R. 294 where he stated at p. 313:-
315. In
my opinion, one of the personal rights of the citizen protected by the general
guarantee is the right to bodily integrity. I understand the right to bodily
integrity to mean that no mutilation of the body or any of its members may be
carried out on any citizen under authority of the law except for the good of
the whole body and that no process which is or may, as a matter of probability,
be dangerous or harmful to the life or health of the citizens or any of them
may be imposed (in the sense of being made compulsory) by an Act of the
Oireachtas.”
316. Mrs.
Ryan pursued her case against the State. However, the right to bodily integrity
must be recognised by private individuals as well as the State: see
The
People (D.P.P.) v. T.
(1988)
3 Frewen 141 at page 158.
317. At
issue in the High Court was whether the nutrition and hydration of the ward is
medical treatment. The ward is currently being fed a specific formula through a
gastrostomy tube. The facts as found by the learned trial judge were:-
318. The
nasogastric tube was developed early in this century. It is uncomfortable and
many patients have great difficulty in tolerating it. The gastrostomy tube was
developed in the early 1980s. It is much less stressful on the patient and is
now widely used where long term artificial feeding is necessary. Neither tube
allows the patient the pleasures of eating and drinking; the taste and the
smell of food is bypassed.
319. It
is said by the carers that the provision of nourishment by means of a tube must
now be considered to be normal for the ward since she has been so nourished for
over twenty years. I cannot see, however, that a method of providing
nourishment that is manifestly artificial and therefore abnormal at the outset,
can change its essential nature and be regarded as and become normal or
ordinary, simply because it has continued for a long time. It may be that a
patient may get used to the abnormal artificial method of providing nourishment
and no longer find it burdensome, but that does not make tube-feeding normal.
In the ward’s case, it is also clear that she never got used to the
nasogastric tube. She reacted against it by pulling it out an enormous number
of times, probably well over a thousand times and probably also by way of
reflex reaction to an unpleasant stimulus and if there was any element of
cognition in her rejection of the nasogastric tube, that makes it all the more
emphatic. Its re-insertion, prior to its replacement by the gastrostomy tube in
April, 1992, used to cause great distress to the ward.
320. The
gastrostomy tube is now being used for three years. It is a far easier and more
satisfactory way of delivering nourishment to the ward and is much less
burdensome to her. That does not, however, make it in any sense a normal way of
receiving nourishment. I gather from the evidence that there are now patients
who are able to nourish themselves by way of gastrostomy tube. Such patients,
of course, lose the pleasures of the table but may have much else to life for.
Even in the case of such patients, however, nourishment by gastrostomy tube is
an abnormal artificial way of receiving nourishment and is a form of medical
treatment. In their case, the benefits of thus prolonging life far outweigh the
burdens of the self-administered treatment of nourishment by gastrostomy tube
just as the benefits to the diabetic patient of prolonging life by
self-injected medication far outweigh the burdens of such injections. I should
also say that I see no difference in principle between the artificial provision
of air by a ventilator and the artificial provision of nourishment by a tube.
321. The
above determinations by the High Court insofar as they are fact were made on
credible evidence, and are binding on this Court. I am satisfied that feeding
the ward a formula through a gastrostomy or nasogastric tube is a form of
medical treatment.
322. A
decision has now to be made whether to continue the medical treatment or not.
To continue the treatment is as much a decision as not to do so. If the
decision is to continue medical treatment, a consent has to be given on behalf
of the ward for the invasive medical treatment. If the decision is to cease the
medical treatment, a consent on behalf of the ward has also to be given.
323. It
is not pertinent whether the treatment is ordinary or extraordinary medical
treatment. Consent of the adult with capacity is necessary for either ordinary
or extraordinary medical treatment.
324. However,
the nature of the medical treatment here is pertinent to the ward’s
condition. The medical treatment is invasive. This results in a loss of bodily
integrity and dignity. It removes control of self and control of bodily
functions. When medical treatment is ingested, inhaled or applied then there is
a voluntary co-operative effort by the patient and each time a voluntary effort
occurs the patient reveals to their carers their continuing consent to
treatment which invades the integrity of the body. When the treatment is
administered by a tube or a needle, the element of cooperation by the patient
is lost. Normally, the benefits of such invasive treatment are clearly in a
patient’s best interest, but they are given to a patient in ways in which
the individual has no control and are fundamentally different to non-invasive
treatment. Whilst an unconscious patient in an emergency should receive all
reasonable treatment pending a determination of their best interests, invasive
therapy should not be continued in a casual or ill considered way.
325. If
the ward were of full capacity as she is of full age, she would be required to
consent before the current medical treatment were to be given to her. She is
unable so to do. The issue then is whether anyone else can make the decision
for her. Her family have applied to have the medical treatment stopped. Her
committee (her mother) feels this should happen in her best interests. The
carers where she is at present say she should continue to be fed through the
gastrostomy. The Attorney General has argued that this Court cannot make a
decision to cease the nutrition and hydration through the tube process. Yet, no
matter what the medical condition of the ward, P.V.S., near P.V.S., or non
P.V.S., she has a right of equality within the Constitution.
326. The
Constitution specifically addresses the issue of equality in Article 40 stating:-
327. Thus,
all citizens as human persons are equal before the law. This is not a
restricted concept, it does not mean solely that legislation should not be
discriminatory. It is a positive proposition.
328. The
right to equality arises in recognition that citizens are human persons, it
exists as long as they are human persons. A citizen is a human person until
death.
329. Due
regard may be had to differences. It may be that in certain instances a person
may not be able to exercise a right. But the right exists. The State has due
regard to the difference of capacity and may envisage a different process to
protect the rights of the incapacitated. It is the duty of the Court to uphold
equality before the law. It is thus appropriate to consider if a method exists
to give to the insentient person, the ward, equal rights with those who are
sentient.
330. Article
40, s. 3, of Bunreacht na hÉireann states:-
331. The
right to life is the pre-eminent personal right. The State has guaranteed in
its laws to respect this right. The respect is absolute. This right refers to
all lives - all lives are respected for the benefit of the individual and for
the common good. The State’s respect for the life of the individual
encompasses the right of the individual to, for example, refuse a blood
transfusion for religious reasons. In the recognition of the individual’s
autonomy, life is respected.
332. The
requirement to defend and vindicate the life is a requirement “as far as
practicable”, it is not an absolute. Life itself is not an absolute.
333. The
State stands firmly committed to protect personal rights. These are the rights
personal to the individual. Some of them are enumerated e.g., life, person,
good name and property. Some are unenumerated e.g., right to bodily integrity,
right to work, right to earn a livelihood, right to marital privacy, right of
access to the courts, right to travel.
334. In
this case, the right to life is in issue. The State, under the Constitution,
must protect “as best it may” that life from unjust attack. Thus,
it also is not an absolute right, it is qualified.
335. Respect
is given to the life of the ward. Her life is no less protected or guarded than
any other person’s. Her rights as a citizen stand.
336. As
she herself cannot make the necessary decision as to the medical treatment, an
easy way to deal with the matter would be to say that no decision can then be
made. However, that would not be to respect her life. That would be to refuse
to her the rights given to other persons. That would be to say effectively that
by her incapacity to make a decision she has lost that right. It would be to
regard her life as less worthy of decision. Therefore, in order to respect her
life a decision should be made.
337. In
taking that decision it must be made so as to preserve, defend and vindicate
her life. In view of the constitutional requirement that life be respected,
that it be protected as best it may from unjust attack and that it be defended
and vindicated as far as practicable, there is a clear constitutional
presumption that the
status
quo
in
this case should continue. It is for the applicant on the balance of
probabilities to establish that the life of the ward is best respected,
protected and vindicated by the Court acceding to the application.
338. The
right to life also encompasses the concept of the sanctity of life. It is a
concept fundamental to our society. Life has a sacred value, an intrinsic
worth. As Walsh J. said in
Quinn’s
Supermarket v. Attorney General
[1972]
I.R. 1, at p. 23, the Constitution:-
339. That
foundation is an aid in interpreting the law and the Constitution. In regard
specifically to the right to life, it enables the interpretation to be
inclusive of a spiritual or religious component. This approach is signalled in
the first words of Article 40, s. 3, sub-s. 1, where the unqualified
“respect” for life is stated. In respecting a person’s death
we are also respecting their life – giving to it sanctity. That concept
of sanctity is an inclusive view which recognises that in our society persons,
whether members of religion or not, all under the Constitution are protected by
respect for human life. A view that life must be preserved at all costs does
not sanctify life. A person, and/or her family, who have a view as to the
intrinsic sanctity of the life in question are, in fact, encompassed in the
constitutional mandate to protect life for the common good – what is
being protected (and not denied or ignored or overruled) is the sanctity of
that person’s life. To care for the dying, to love and cherish them, and
to free them from suffering rather than simply to postpone death, is to have
fundamental respect for the sanctity of life and its end.
340. In
analysing the right to life, attention must be given to the person’s
right to life, privacy, autonomy and bodily integrity. Also, the common good,
the interest of the community, in the protection of life, must be considered.
It is an area where the two interests may appear to conflict.
341. The
common good is achieved by the protection of life within the community.
However, we recognise that a competent adult may decide that they do not
consent to medical treatment. The State’s respect for the life of the
person encompasses the right of the person to hold views such that, for
religious or other reasons, they refuse medical treatment. In the acceptance of
the person’s decision, their life is respected.
342. If
that person is incapacitated and cannot make the decision is it appropriate to
keep them alive in a manner which their family finds horrendous? Is it right
for the decisions of doctors and carers or the State to override the
family’s view? Is the right to life such that it must be maintained at
all costs, in all circumstances, if the facilities exist? Does it become a
question of whether the care
can
be
given?
343. The
primary constitutional concept is to protect life within the community. The
State has an interest in the moral aspect of society – for the common
good. But, balanced against that is the person’s right to life –
which encompasses a right to die naturally and in the privacy of the family and
with minimum suffering.
344. The
right to privacy is an unenumerated right under the Constitution. The right to
privacy was mentioned in
Ryan
v. Attorney General
[1965]
I.R.
294, and marital privacy was the basis for the decisions in
McGee
v. Attorney General
[1974] IR 284. In
Norris
v. Attorney General
[1984] IR 36, the majority refused the plaintiff’s claim of privacy but its
existence was noted. In two dissenting judgments the right of privacy was
expressly recognised. Henchy J. stated at p. 71 :-
346. The
nature of the right to privacy must be such as to ensure the dignity and
freedom of an individual in the type of society envisaged by the Constitution,
namely a sovereign, independent and democratic society.
347. Part
of the right to privacy is the giving or refusing of consent to medical
treatment. Merely because medical treatment becomes necessary to sustain life
does not mean that the right to privacy is lost, neither is the right lost by a
person becoming insentient. Nor is the right lost if a person becomes
insentient and needs medical treatment to sustain life and is cared for by
people who can and wish to continue taking care of the person. Simply it means
that the right may be exercised by a different process. The individual retains
their personal rights.
348. The
right to privacy is not absolute. It has to be balanced against the
State’s duty to protect and vindicate life. However,
349. The
increasing personal right to privacy in such a situation is consistent with the
defence and vindication of life being “as far as practicable”
(Article 40, s. 3, sub-s. 1) and the protection being “as best it
may” (Article 40, s. 3, sub-section 2).
350. A
constituent of the right of privacy is the right to die naturally, with dignity
and with minimum suffering. This right is not lost to a person if they become
incapacitated or insentient.
351. An
unspecified right under the Constitution to all persons as human persons is
dignity – to be treated with dignity. Such right is not lost by illness
or accident. As long as a person is alive they have this right. Thus, the ward
in this case has a right to dignity. Decision-making in relation to medical
treatment is an aspect of the right to privacy; however, a component in the
decision may relate to personal dignity. Is the ward, as described by Brennan
J. in his dissenting judgment in
Cruzan
v. Director, Missouri Department of Health
(1990)
497 U.S. 261, “a passive prisoner of medical technology”? If that
be so, is it in keeping with her right as a human person to dignity? Just as
“the individual’s right to privacy grows as the degree of bodily
invasion increases” (
In
re Quinlan
(1976)
355
A.
2d. 647), so too the dignity of a person is progressively diminished by
increasingly invasive medicine.
352. As
part and parcel of their constitutional rights, a patient has a right to choose
whether she will or will not accept medical treatment. This concept is the
requirement of consent to medical treatment seen from another aspect.
353. The
family is the basic unit group of society, its special position in our
community is recognised by the Constitution. Article 41, s. 1 states:-
354. 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.
355. This
case concerns a ward of court and so the jurisdiction to make the decision in
this situation lies with the court and not the family. The mother of the ward
is the committee of the ward and her view is shared by the entire family. The
family’s view as to the care and welfare of its members carries a special
weight. A court should be slow to disagree with a family decision as to the
care of one of its number if that decision has been reached
bona
fides
after
medical, legal and theological advice and careful consideration.
356. In
this case, the family is united in its view of what decision should be made.
While that view does not determine the issue before this Court it is a factor
to which the Court should give considerable weight.
357. The
core of this case concerns personal rights. The personal rights of the ward.
Article 41, on the other hand, has to do with the institution of the family. As
Costello J. said in
Murray
v. Ireland
[1985] I.R. 532
at
p. 537 (having considered the judgment of Kenny J. in
Ryan
v. Attorney General
[1965]
I.R.
294):-
358. At
issue in this case are the personal rights of the ward: not the rights of the
fundamental unit group of the State. Thus, it is a matter which falls to be
decided as a matter of personal rights rather than under Article 41.
359. Twenty
three years ago, the ward suffered major injury to her brain during a minor
gynaecological operation. If it were not for modern medical technology,
utilised after the catastrophe, she would have died long since. She has been
kept alive by modern medical science and the dedicated care and skill of the
medical and nursing professions.
360. The
cause of the original brain injury has cast a shadow over this whole case.
Originally, communication between the family and the carers was neither open
nor easy.
361. The
evidence presents illustrations of a lack of communication between the medical
profession and the family evocative of the Victorian era. This lack of
communication stemmed from the long shadow of the original catastrophe and the
subsequent court action. It was a difficult situation not only for the family
but also for the doctors and carers. However, that situation has long since
changed. Apart from the ward and the family, the personnel are different.
362. If
this Court determines that the order of the High Court be upheld then, those
acts so ordered being lawful, the ward would die shortly as a result of the
medical catastrophe which occurred 23 years ago. This fact must not now cloud
the decision to be made by the Court.
363. The
doctors have a duty to the patient, the ward. The decision of the Court is a
decision in accordance with the Constitution and the law and is wider than the
doctor’s clinical judgment. It takes into account other factors.
364. The
totality of the ward’s situation must be considered. These factors have
been dealt with in the body of the judgment. For the purpose of clarity they
include the following:-
365. The
decision at issue is not a clinical medical decision. Nor is it grounded on
whether the doctors and/or carers
can
keep
the ward alive. Nor is not based on the availability or not of facilities. It
is the test of what is the best interest of the ward, within constitutional
parameters, taking factors including those enumerated previously into account.
366. I
shall consider each of the stated factors in the same order as set forth above
and relate them to the ward’s situation.
367. Applying
the test of the best interests of the ward, the mother and family arrived at a
decision not to consent to the medical treatment.
368. The
High Court in acceding to the application of the mother of the ward applied to
the facts a test of the best interests of the ward. Lynch J. stated:-
369. The
test is whether having heard and considered the whole case and the authorities
cited to me, I am of opinion that it is or it is not in the best interests of
the ward that her life should be prolonged by the continuance of the abnormal,
artificial means of nourishment whether by nasogastric or gastrostomy tube.
370. This
is the correct test which I have had the opportunity of setting out in further
detail. Applying the factors recited herein, as a prudent, good and caring
parent, in the best interests of the ward, the learned trial judge did not err
in his order which is, in effect, not to consent to the medical treatment for
the ward.