Hospital can withhold invasive treatments to avoid ‘unimaginable suffering’ to boy

A hospital is entitled to withhold invasive interventions and effectively administer a palliative care regime to a profoundly brain-injured boy should his condition substantially deteriorate, the president of the High Court has ruled.

The boy – a ward of court referred to as John – could experience “unimaginable suffering” unless the hospital can manage his condition as it considers appropriate, Ms Justice Mary Irvine concluded.

John’s parents, who are separated, strongly opposed the orders and wanted their son to receive all treatments that would prolong his life regardless of the side-effects or consequences.

The hospital said invasive interventions would only damage John in the short- to long-term without improving his condition, were ethically unacceptable and would mean he must remain in a specialist hospital rather than a hospice or regional hospital nearer home.

In her judgment on Wednesday, Ms Justice Irvine said this application could “hardly be more important” as it concerned the life and well-being of a “most precious” boy who suffered catastrophic injuries in a “desperately tragic” road accident and the bond of “immense love” that binds him to his parents and siblings.

Having considered and balanced the constitutional rights of the parents, the family and John, she concluded the orders sought were in John’s best interests and necessary to vindicate his rights.

She said the parents’ love for their son has blinded them to the reality of his condition and may have contributed to their holding to the idea his pain is tolerable in the face of “a tsunami of evidence to the contrary”.

She rejected arguments John’s prognosis is in any material respect unclear or uncertain and said there was as much certainty as there can be with any medical diagnosis that he will not recover in any significant way from his injuries.

The parents disagreed with the hospital’s assessment concerning the pain being suffered by their son as a result of dystonia, a movement disorder which, unless fully controlled by medication, causes his muscles to contract uncontrollably. They objected to John being medicated to treat pain caused by dystonia if there was a risk that would cause him respiratory distress and possibly die.

No reasonable parent could reasonably make such a decision, the judge said. Regrettably, she had formed the view they were failing in their duty as parents to vindicate the rights which their son, because of his age and injuries, cannot himself protect and the State must thus step in.

She was satisfied the parental rights derived from the Constitution did not preclude State intervention in this case.

She rejected arguments the orders sought amounted to accelerating death, which is constitutionally impermissible. The orders were not aimed at cutting short John’s life in anticipation of his eventual demise but, in circumstances where he has a dystonic crisis, the medication administered in response to a specific crisis may have the effect of terminating his life.

No-one is suggesting the hospital be given liberty to terminate John’s life because he may experience pain in the future, she stressed.

She dismissed arguments the orders amounted to an inordinate extension of the court’s wardship jurisdiction. The court was required to vindicate the rights of the ward, including the right to life, and act in their best interests, she said.

There were compelling reasons for the court to intervene because John’s rights were “clearly in jeopardy”. The position adopted by his parents concerning his medical care could objectively be classified as a failure of their duty as parents.

In considering what John himself would want, she had regard to all she had been told about him, a relatively carefree young man who loved his family, football and country music and was described by his mother as having the “heart of a lion”.

Having thought about what he might consider to be a worthwhile and meaningful life, she did not think it credible that John, knowing he will spend most of the rest of his life in a hospital bed and will never walk, talk, see, go to school, have new friends, communicate, feel love, happiness or pleasure, will be doubly incontinent and, if he survives invasive measures, endure significant periods of pain, would say “do whatever is necessary to keep me alive” knowing such measures would likely involve breaking his ribs and inflict other damage only to return him to health trajectory worse than that which he faced before the crisis.

She was equally certain he would want to receive treatment to control his pain even if that would lead to respiratory compromise.

She was “full of admiration” for the parents who have been a constant presence at his bedside since the accident and noted his treating team had praised the support and love shown by them for their son.

The judge deferred to Friday the making of final orders after Siobhan Phelan SC, for the mother, asked for time to consider the judgment and indicated she may seek a stay on the orders pending a possible appeal.