Court rejects health board challenge to couple on test for son

In a case raising important constitutional issues for the powers and duties of the State to act for the benefit of children, the Supreme Court yesterday rejected a health board challenge to the refusal of a couple to allow the PKU - "heel pinprick" - screening test be carried out on their infant son.

Ms Justice Denham said the North Western Health Board was effectively seeking to have the test made compulsory.

If the court was to order the test to be carried out on this child, it would effectively mean parents had no right to refuse it. That would have "a far-reaching" effect, would turn into law something which was presently only departmental policy and would also establish "a very low threshold" for court intervention in future cases involving children.

Only in exceptional circumstances would the court intervene and make an order contrary to the decisions of parents regarding procedures for their children, she said.

Mr Justice Hardiman said this "utterly novel" case was the first attempt anywhere to carry out this test compulsorily on a child whose parents were unwilling. Subject to a few rare exceptions, consent was required here for medical treatment and treatment without such consent was "a trespass, a battery and a breach of constitutional rights".

While the State could in exceptional circumstances become a default parent, he did not believe these parents had failed in their duty to their children. A conscientious disagreement with the public health authorities was neither a failure in duty nor an exceptional case justifying State intervention.

By a four to one majority - the dissenting judge being the Chief Justice, Mr Justice Keane - the court dismissed the NWHB's appeal against the High Court's refusal to grant an order permitting the board to carry out the PKU test on the now year-old boy.

The parents had objected to the test on the grounds it was an invasive procedure.

Ms Justice Denham said at issue was the balance of responsibility between parental rights, the responsibility of the health board and the child's rights as a member of a family and as a person.

In assessing whether State intervention was necessary, the fundamental principle was that the child's welfare was paramount. Part of the analysis of the child's welfare was the wider picture of the place of the child in the family and their right to be part of that unit. If the child's life was in immediate danger, such as needing an operation, there was a heavy weight to be put on the child's personal rights superseding family and parental considerations.

If the responsibility for making decisions on medical tests and inoculations was transferred from parents to the State, it would herald in a new era with considerably more State intervention and decision making for children than has occurred to date, she said. Parents daily made decisions regarding their children's welfare, they were responsible and liability rested with them.

Mr Justice Murphy said he didn't accept a particular ill-advised decision by parents, whose care and devotion generally to their child was not disputed, could be properly categorised as such a default of the parents' moral and constitutional duty that State intervention was warranted.

Mr Justice Murray said if the State had a duty or was entitled to override any decision of parents because it concluded that decision was not in the best interest of the child, the State and courts would be involved in a sort of micro-management of the family. Parents with unorthodox or unpopular views or lifestyles might find themselves subject to State intervention. That would introduce a method of social control in which the State or its agencies would be substituted for the family.

While he believed the decision by the parents in this case was manifestly unwise and disturbing, it was a decision they had the liberty to take. This was not a case where there was such an abdication of responsibility to justify the State's view being substituted for the parents.

Dissenting, the Chief Justice said he was satisfied the board had established the boy's rights could only be upheld by carrying out the PKU test. For a court to take the steps necessary to uphold the boy's rights in no sense violated the doctrine of the separation of powers. Constitutional provisions regarding the family did not oblige the court to allow the wishes of the parents, however irrational, to prevail over the best interests of the child.