Judge warns lawyers and doctors about ‘paternalistic’ treatment of some families

The president of the High Court has expressed concern that families of some wards of court can feel they are being “sidelined” by some “paternalistic” doctors and lawyers.

Ms Justice Mary Irvine, who runs the court’s wardship list, said she will consider whether the court can put some form of protocol or practice direction in place to ensure families are involved and kept fully informed.

She made the remarks on Friday when reviewing the case of a 17-year-old girl with a long history of eating disorder who was diagnosed with anorexia nervosa when aged 11.

The girl was subject of an emergency application by the HSE to the High Court in October 2019, made in the context of an intended wardship application. Then in hospital, her condition was so serious she was described as “critically unwell” with a BMI of 11.7.

Orders were made, with the consent of her parents, permitting her detention in hospital and treatment, including naso-gastric feeding, after the court was told she was in denial of the seriousness of her situation, insisting she felt “fine”, was refusing bed rest and was “microexercising”.

Doctors expressed the view that, as a result of anorexia, she lacked capacity to understand the seriousness of her situation. The HSE subsequently secured orders making the girl a ward of court.

On Friday, Ms Justice Irvine was told the girl has made such good progress at a specialist eating disorders residential facility she is now in a position to go home.

The judge made orders providing for that home leave until later this month when she will further review the situation. If the girl’s progress is maintained, the intention is the home leave will continue.

The girl’s father earlier told the judge he and his wife felt they had not been kept fully informed about their daughter’s situation and were “bitterly disappointed” about that. They also felt no one had really explained the wardship process to them and they had consented to wardship “under duress”.

Having heard the man, the judge said she was concerned he felt as he did.

Under the Constitution, it is assumed the family knows best and normally the State does not intervene, she said. Children have their own rights under the Constitution to be protected and sometimes the State has to step in, she added.

That did not mean parents can suddenly be sidelined, she said. It is only right they be apprised concerning their child and she accepted the man was entitled to be told what is going on.

Lawyers, and doctors, can sometimes engage in “paternalistic behaviour” in relation to thinking they know what is best for a child, she said.

While not accepting there was any deliberate withholding of information from the man, she said doctors and lawyers sometimes forget “the whole human aspect” of situations and that should not happen.

She told the man she would take on board what was said and would consider whether some protocol or practice direction could perhaps be put in place to ensure parents are involved, have proper information and are able to discuss the matter.

Because of the requirement to deal with other cases, the judge said she could not, at this point, hear further submissions from either the man or from counsel for the parties on the issues raised by him, but she was satisfied on the evidence to make the orders for home leave.