High Court of Ireland Decisions

1. There is a screening test, commonly known as the PKU test, which has been available for over thirty years for testing for the presence of four metabolic conditions and one endocrine condition in children. This test is normally carried out on new-born infants between 72 hours and 120 hours after birth. It is in effect a blood test, the blood being extracted from the infant by puncturing the skin, usually in the heel of the infant, with a lancet which has a guard which ensures it can only penetrate to a limited extent, and then extracting some drops of blood, usually by pressure on the heel close to where the lancet was inserted. The resulting drops of blood are collected on what is called a Guthrie card, and is sent to Temple Street Hospital in Dublin where it is tested for these conditions.

2. In the present case we are only concerned at this stage with the screening for three of these conditions which may be referred to briefly.

3. It is common to all these conditions that they are treatable, but once the damage has been caused by the condition it is usually irreversible, and thus it is medically considered of great importance to have the condition diagnosed at as early a stage as possible.

4. This screening has been carried out for over thirty years. Originally, the screening was only for Phenylketonuria, and this was extended to the other conditions at various times up to the year 1979. The screening is not provided for by legislation, but is a service which is being provided by the Department of Health and the local health boards for the benefit of the community in general. There is no provision or regulation making it mandatory, but in reality it is now carried out more or less as a matter of course, and the Department of Health records would indicate that there are only about six cases per year in which parents refuse to have the test carried out.

5. In September 1990 a working group was set up by the then Minister for Health to report on metabolic disorders, which report recommended certain standard procedures with

6. The Defendants are the parents of a baby who I shall call Paul (not his real name) who was born earlier this year. They are resident in the functional area of the Plaintiff health board. Paul was in fact born at home, and shortly after his birth the nurse employed by the Plaintiff sought to have the PKU test carried out on Paul. The Defendants refused to allow the test to be carried out, and after some correspondence wrote to the Plaintiffs Solicitors in the following terms:-

7. It is accepted that at this stage there is no necessity for a screening in relation to two of the conditions normally covered by the tests, as they would already have become apparent had they been present. However, the Plaintiff emphasises that the remaining three conditions which I already have described could still be present, and if identified at this stage could be treated successfully.

8. In this case the Plaintiffs are claiming certain declarations and injunctions, namely:-

9. This case raises very serious constitutional issues both with regard to the relationship between parents and their child and with regard to the powers and duties of the State to act for the benefit of children.

10. It is not disputed by the Defendants that the Court has jurisdiction in this matter pursuant to section 9 of the Courts (Supplemental Provisions) Act 1961, but what is at issue is the extent of that jurisdiction. The Plaintiffs for their part rely on the provisions of the Child Care Act, 1991 and in particular on section 3, the relevant provisions of which are as follows:-

11. The Plaintiffs also point to the extended powers given to a health board in relation to care orders and supervision orders, although they are not bringing these proceedings based on those provisions.

12. The relevant constitutional provisions appear to be the following:-

13. The Plaintiff’s primary argument is that the benefits of the screening process to Paul are such that is clearly in his best interests to have the test carried out. They point out that all that is involved is a pinprick, which carries absolutely minimal risks of any harm to him, and that in particular this must be considered in the light of the possible seriousness of any of these conditions, should the tests on Paul prove positive. They express this in their written submissions as follows:-

14. They say that if one has regard to the welfare of the child as being the first and paramount consideration, there can be no doubt that the welfare of the child requires this test to be carried out, and further that the parents’ rights cannot be exercised in such as way as to delegate from the rights of the child because such rights are declared to be paramount. The

15. Plaintiff further argues that this case must be decided on its own facts, and that what is for decision by the Court is not whether screening by PKU test is mandatory, but whether, in this particular case, it is in the best interests of Paul, that is this particular child.

16. It is acknowledged that the defendants are good and conscious parents, and are acting from genuine beliefs. They point to the fact that the legislature has not chosen, either in the case of this particular test or in the case of any other screening or vaccination programme, to make participation in such programme compulsory, and have further stated, without contradiction, that no such programme is compulsory in any other country. They say that the rights of the family, and therefore in the case of a young infant, the parents, must take precedence under the constitution over the rights of the child unless there is an exceptional case where the parents, for physical or moral reasons, have failed in their duty towards the children. They argue that this is not an exceptional case, and that it is generally the right of a parent to determine what, if any, medical treatment will be given to their child, although they do acknowledge that there may be exceptional circumstances in which the courts may intervene, for example, where courts have ordered a blood transfusion to be given to a child in a lifesaving situation. Counsel for the Defendants points out that parents make decisions for their children all the time, and that they have, as he puts it, a right to be wrong. He says that they certainly are not bound to act in accordance with generally accepted principles or generally accepted medical opinion

17. The case which has caused the most controversy before me, and from which certain passages are strongly relied upon by the Plaintiff, is Ryan -v- The Attorney General [1965] IR 294, commonly known as the Fluoridation Case. This was an action by the Plaintiff seeking a declaration that certain sections of the Health (Fluoridation of Water Supplies) Act, 1960 were unconstitutional. One of the grounds of challenge to the constitutionality of the Act was that it was a violation of the authority of the family under Article 41. With regard to that argument, Ó Dálaigh C.J. said at page 350:-

18. There is no doubt that under Article 40.3.2. of the Constitution there is a duty on the State to protect, defend and vindicate the personal rights of a citizen. However, this obligation is not unlimited or universal, as was made clear in the judgment of Henchy J. Hanrahan -v- Merck Sharp & Dohme [1988] ILRM 629, where he said

19. The obligations of the State under these provisions, and indeed the rights of the State to interfere with which might otherwise be personal rights of an individual, have certainly been approved by the Courts in a number of cases dealing with children, examples of which would be, F.M. -v- The Minister for Education and others [1995] ILRM 927 and D.G.-v- Eastern Health Board and others [1998] 1 ILRM 241 . However, these were not cases in

20. Article 42.5 is quite clear that such jurisdiction must only exist in exceptional cases, “where the parents for physical or moral reasons fail in their duty towards their children.” This provision clearly justifies State intervention in certain cases, but only in exceptional cases and only where there has been a failure by the parents in their duty for physical or moral reasons.

21. The rights and duties of the State in relation to a child, having regard to Article 42., were also considered in In the matter of Article 26 of the Constitution and In the mater of the Adoption (No .2) Bill, 1987 [1989] I.R. 656. In his judgment at page 663 Finlay C.J. said:-

22. Again, this case was of course dealing with a situation in which there would be a total failure by the parents of their duty, or indeed where the parents have died and there is no family in existence. It does not address the problem of trying to balance the rights of the family as against what might be objectively seen as the best interest of the child.

23. I have already quoted the provisions of Section 3 of the Child Care Act, 1991, which undoubtedly imposes an obligation on health boards to promote the welfare of children in its area “who were not receiving adequate care and protection”. In this regard, the welfare of the child must be the first and paramount consideration. I must, of course, in the absence of any constitutional challenge to this section, assume that it is constitutional, and accordingly it must be construed in accordance with the provisions of the Constitution. It should be noted that the Act is primarily concerned with situations where, for a child’s welfare, it is necessary that the child be taken under the care of some institution other than the family. In accordance with the presumption of constitutionality within which these provisions, must come, it must relate to exceptional cases where there has been a failure by the parents for physical or moral reasons. The Child Care Act simply provides a mechanism where by the State undertakes its obligations under Article 42.5. Quite clearly the welfare of the child is not the only matter to be considered under S.3 of the Act, and the rights of the parents and the position of the family unit is clearly both recognised and emphasised in subsection (2)(b) and (c) of that section.

24. Article 41.1 places the family in a very special position as being the natural primary and fundamental unit group of society. It also provides that the family possess rights which are antecedent and superior to all positive law. It is indeed probably the provision in the constitution which comes nearest to accepting that there is a natural law in the

25. Parents constantly make decisions of this nature, and subject their children to risks which objectively may not be justified, and which may have disastrous results. Examples outside the medical field may be decisions to allow a child to cycle to school on a busy road, or decisions to allow a teenager to find his or her own way home from a disco. Of course, in extreme cases the putting of children into a situation of risk may justify State intervention, but such cases would be extreme, and therefore exceptional cases. In the medical field, the State provides many facilities for the protection of children, such as inoculations and vaccinations, but it does not compel the parents to have their children innoculated or vaccinated. There is in fact a far stronger case to be made that some vaccinations should be compulsory in the common good where the vaccination is against an

26. Undoubtedly the strongest case in favour of the Plaintiff is Ryan -v- the Attorney General , but I think this case must be seen in its context. This was a situation were the State sought to impose a treatment of water for the common good, and in which one individual sought to prevent the entire nation from having the benefit of foundation. The present case is quite the opposite. Here the State is providing a service to the public in general, which will not be affected by the outcome of these proceedings. In the Ryan case, one suspects the result would have been very different if Mrs Ryan had simply sought a declaration that she and her family were not bound to drink from the common water supply, and that in effect is the argument being made by the Defendant in the present case.

27. The framers of the Constitution used the word “exceptional” in Article 42.5, and one must assume that they did so after very careful consideration. Indeed, the use of that word is totally consistent with the provisions of Article 41.1. There are of course cases in which the State may interfere with parental rights, and many of these are detailed in the Child Care Act, 1991. They are the exceptional cases. In my view the decision in the present case by the Defendants, who are acknowledged to be caring and conscientious parents, could not be said to constitute an exceptional case, even though the general medical opinion would be quite clear that such decision was wrong. If the State were entitled to intervene in every case where professional opinion differed from that of parents, or where the State considered the parents were wrong in a decision, we would be rapidly stepping towards the Brave New World in which the State always knows best. In my view that situation would be totally at variance with both the spirit and the word of the Constitution.

28. Finally, I should consider the wording of Article 40.3.2, which would appear to be the Constitutional justification for the intervention by the Plaintiff in this case. The “unjust attack” on “injustice done” required by this provision can only be the refusal of the Defendants to allow the test to be carried out on Paul. As I have already indicated, I do not think that there has been an injustice to Paul, but even if I am wrong, the State has not chosen to use its laws to protect Paul in the manner envisaged by Article 40.3.2. The State, through the Plaintiff as an organ or body set up by the State, appears to be asking the Court to undertake the obligation imposed by the Article. If the State believes that it has an obligation to make it unlawful for parents to refuse to allow their children to undergo tests such as this, the State, through the Oireachtas, could so provide in legislation. That legislation could then be tested in the Courts for its Constitutionality.

29. Accordingly I refuse the relief sought.