Dr Conor Oâ€™Mahony, Faculty of Law, UCC
Over the Christmas holidays â€“ 2.30 am on the morning of December 27 to be precise â€“ Mr Justice Hogan of the High Court granted an order authorising the administration of a blood transfusion to a 4 month old baby against the religiously-based objections of his Jehovahâ€™s Witness parents. This is not the first time that this has occurred, but what makes it particularly noteworthy is that it is the first time that an emergency order of this kind has been followed by a written judgment, which Hogan J issued on January 12. The case raises important issues with respect to both Article 44 of the Constitution, which protects freedom of religion, and Articles 41 and 42 of the Constitution, which protect family autonomy and delineate the power of the State to intervene in family affairs so as to protect children whose welfare is at risk. In light of the long-awaited referendum on children, this judgment is most topical.
Article 42.5 permits State intervention in â€œexceptional casesâ€ where parents fail in their duties for physical or moral reasons. Previous case law â€“ namely the Baby Ann case in 2006 â€“ has stressed that â€œphysicalâ€ reasons involve matters outside of the parentâ€™s control, while â€œmoralâ€ reasons involve culpability or blameworthiness on the part of the parents. Hogan J was careful to point out that in this case, the parents were wholesome and upright, and deeply concerned for their childâ€™s welfare, but steadfast in their religious belief. Accordingly, he agreed with an earlier judgment in which Bermingham J had commented that the use of the word â€œfailureâ€ is somewhat unfortunate in Article 42.5, since the parents at all times felt that they were acting conscientiously in accordance with their religious views. This is an interesting observation in light of the fact that the proposed amendment (as of February 2010 â€“ but publication of an amended version is pending) to Article 42.5, while removing the words â€œexceptionalâ€ and â€œdutyâ€, retains the concept of failure in responsibility.
Nonetheless, in spite of the conundrum this issue presents, Hogan J ruled that â€œ[t]he test of whether the parents have failed for the purposes of Article 42.5 is, however, an objective one judged by the secular standards of society in general and of the Constitution in particular, irrespective of their own subjective religious views.â€ Relying on the standard set down in the PKU case in 2001 that State intervention would be justifiable where there is an imminent threat of death or serious injury, Hogan J ruled that the religious freedom of the parents, and their autonomy as a constitutionally protected family, gave way to the need to protect the life of the child:
â€œThe State has a vital interest in ensuring that children are protected, so that a new cohort of well-rounded, healthy and educated citizens can come to maturity and are thus given every opportunity to develop in life. This interest can prevail even in the face of express and fundamental constitutional rights. â€¦ Given that Article 40.3.2 commits the State to protecting by its laws as best it may the life and person of every citizen, it is incontestable but that this Court is given a jurisdiction (and, indeed, a duty) to override the religious objections of the parents where adherence to these beliefs this would threaten the life and general welfare of their child.â€
This is a significant and welcome decision insofar as it finally clarifies this point in the form of a written judgment. The PKU case had not involved religious objections (and the risk to the child was not found to be serious enough to justify intervention), and the last major written judgment on the issue of Jehovahâ€™s witnesses and blood transfusions, Fitzpatrick v K in 2008, was decided on grounds of lack of capacity rather than religious freedom. Citing that decision, Hogan J remarked obiter that a properly informed adult with full capacity would be free to refuse medical treatment for religious or other reasons. Since the age of consent for medical treatment is 16 in accordance with section 23 of the Non-Fatal Offences Against the Person Act 1997, one of the obvious questions that arises from this case is how the court would decide a case in which a mature teenager of 16 or 17 wished to refuse a blood transfusion on religious grounds or otherwise. Such a case could give rise to a variety of interesting issues depending on whether the parents supported the decision, and whether they were married and thus entitled to rely on the protection offered by Article 41 of the Constitution to the marital family.