The Supreme Court has clarified the scope of a wardship order concerning a minor’s medical treatment, giving the child’s mother an opportunity to consent to or refuse specified treatment while allowing for emergencies when she cannot be contacted.
The ruling, delivered on 9 March 2021, followed the Court’s substantive judgments on the appeal on 22 January. The parties had been asked to make written submissions on the final order and costs. As they did not reach full agreement, and no party sought an oral hearing, the Court ruled after considering those submissions.
The Court said the wardship order should be limited to show greater respect for the parents’ role. It gave as an example that High Court consent should not be needed in future for an operation such as the one carried out on the minor’s Achilles tendons. But the Court rejected limiting wardship only to decisions about medication intended to treat severe breakthrough neurological symptoms. The High Court’s wardship jurisdiction will remain available in the limited area of pain-relieving medication and other directions about medical treatment if the minor’s condition worsens, whether because of medication or otherwise.
The parents agreed that parental authority in this case should be exercised by the mother, who is the minor’s Guardian of the Person. The order will not require the father’s formal consent, though he may express his views and have them considered. The mother must be given an opportunity, so far as practicable in the circumstances, to consent to or refuse medication and the withholding of life-prolonging treatment. The Court said the order also had to allow for an emergency if she was in fact uncontactable when a decision was needed in the child’s best interests.
On withholding life-prolonging treatment or supports, the Court rejected the mother’s proposal that the hospital’s clinical director make the decision. It ordered that the decision be made by the senior person among the doctors treating the minor if circumstances require it. The declaration that withholding treatment or supports would be lawful applies to medical and nursing staff involved in making or carrying out that decision.
The Attorney General and the Irish Human Rights and Equality Commission will bear their own costs. The hospital must pay the guardian ad litem’s costs and 70% of each parent’s appeal costs. The Court said 70% was appropriate in light of the appeal’s outcome, its findings and the significance of the issues. It declined to include a second junior counsel’s costs in the guardian’s appeal costs, finding that the extra counsel had not been shown to be necessary.