Report No. 196
(5) Ward of Court, Re a: (1995) ILRM 401) (Hamilton CJ, O'Flaherty, Egan, Blayney, Denham JJ) (Ireland) (Supreme Court) (Appeal against the order of Lynch J of the High Court.)
The ward born in 1950, suffered irreversible brain damage as a result of anesthesia during 1972 and for several decades, the ward was invalid, the mother of the child was appointed in 1994 by the Court to be guardian of the person and estate of the child and in 1995 she sought directions from the Court for withdrawal of all artificial nutrition and hydration and to give necessary directives as to the child's care.
In this case, the child suffered brain damage of a serious nature, she was spastic, both arms and hands were contracted, both legs and feet were extended, her jaws were clenched, for otherwise she would bite inside of her cheeks and tongue, her back-teeth had been capped to prevent the front teeth from fully enclosing. She could not swallow, she could not speak. She was incontinent. For 20 years she was fed through nasograstric tube.
It was painful, and was replaced by gastronomy tube in 1972 which required administration of general anaesthetic. The tube became detached in Dec 1993, and a new tube was inserted under general anaesthesia . The ward's heart and lungs were functioning normally. She could not speak. She had a minimal capacity to recogniz.- those who were attending on her over a long period. She tracked people with her eyes and reacted to noises, although it was mainly a reflex from the brain stem.
The High Court which heard the case gave consent for such withdrawal of nourishment by tube, whether nasogastric or the gastrostomy tube and decided such termination lawful. It consented to the non-treatment of infections or other pathological conditions which may effect the ward (except palliative care to avoid pain and suffering) and declared such treatment lawful; it authorized the mother and family to make such arrangements as they considered suitable and appropriate for the admission of the ward to a type of institution which was not contrary to their philosophy and ethics and to proceed in accordance with the consensus and declarations made (It stayed the order for days to enable parties to move the Supreme Court).
In the Supreme Court, the judgment was confirmed. Hamilton CJ considered various important aspects of law which were troubling the Irish Courts in several cases.
It referred to Balcombe LJ's observations in In re J (a minor) (wardship: Medical Treatment) 1990(3) All ER 930 (p. 441), that in deciding what is in the best interests of a 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.
The appellate Court was convinced that the ward was not fully in Permanent Vegetative State (PVS), as she has minimal cognitive capacity. However, after 20 years, there was no prospect of her improvement.
The mother and family members supported discontinuance of lifesupport. After quoting extensively from Airedale decided by the House of Lords, and to the findings of the High Court, Hamilton CJ quoted Sir Thomas Bingham M.R. in Airedale that euthanasia and assisted suicide were different, as follows:
"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 a 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."
He then considered the provisions of the Irish Constitution in Chapter XII thereof. Article 40 enumerates "personal rights", (including the right to life etc.). Article 41 enumerates the rights of the 'Family" and deals with the effect of grant of permission to withdraw life-support system in relation to these rights. He stated that the nature of the 'right to life' and its importance imposed a strong presumption in favour of taking all steps capable of preserving it, save in exceptional circumstances. The problem was to define such circumstances. He stated:
"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 taken its course and to die a natural death and, unless the individual 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.
The 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."
In as much as here the patient is maintained artificially and the treatment is in no way, nor intended to be, curative and has been so for twenty years, there is no termination of life involved.
Hamilton CJ also stated that the right to bodily integrity, privacy and self-determination are "unenumerated rights" but are implied by the 'right to life'. They are available if the patient is mentally competent and he or she could wish the artificial treatment to be discontinued even if it would result in death. The artificial treatment being intensive, constitutes an interference with the integrity of her body and cannot be regarded as normal means of nourishment. 'A competent adult, if terminally ill, has the right to forego or discontinue life-saving treatment.
Treatment being afforded to a ward constitutes 'medical treatment' and not merely 'medical care', as stated by Sir Stephen Brown in Airedale N.H.S. Trust. Artificial feeding by means of a nasogastric tube is 'medical treatment'. As the ward is unable to exercise the right for stopping medical treatment, it was not open to any person or persons to exercise that right on her behalf. All citizens shall, as human persons, be equal before the law.
The loss by an individual of his or her mental capability does not result in diminution of her life or her personal rights recognized 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. The ward is unable to have all these rights respected, defended, vindicated and protected from unjust attack, in spite of the lessened or diminished capacity.
By reason of the fact that she is a ward of Court and the provisions of section 9 of the Courts (Supplemented Provisions) Act, 1961 apply, the responsibility for the exercise and vindication of these rights rests on the Court. The first consideration is the paramount well-being, welfare and interests of the ward as stated by Lord Hailsham L.C. in Re (A Minor: Wardship: Sterilisation) (1988 AC 199 at p 202). As stated by Balcombe J in In Re J (A Minor Wardship: Medical Treatment): 1990(3) All ER 930, the Court as representative of the Sovereign as parens patriae will adopt the same standard which a reasonable and responsible parent would do. The Court has regard to the constitutional rights of the ward and is bound to defend and vindicate these rights.
On this basis, the Supreme Court was satisfied to take the '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. "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".
The trial Judge, while permitting discontinuance, had regard 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."
In a separate concurring Judgment, O'Flaherty J referred to Walsh vs. Family Planning Services Ltd (1992) I.R. 496 to say that a competent person must give consent to medical treatment and, as a corollary, has an absolute right to refuse medical treatment even if it leads to death. In American law, this right is the constitutional right to self-determination (otherwise right to bodily integrity) as well as being regarded as a privacy right. So it is in Irish Law (Ryan vs. AG: (1965) I. R 94 and Kennedy vs. Ireland: (1987) I.R. 587. If the ward is unable to make a decision for withdrawal of treatment, consent has to be given on her behalf. In regard to "right to life', Article 2 and 6 of the European Convention and Article 6 of the ICCPR are relevant. He said:
"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 so much as in this country."