The parents of a profoundly brain-injured boy are seeking to appeal a High Court order allowing a hospital to withhold invasive interventions and effectively administer a palliative care regime should his condition substantially deteriorate.
The president of the High Court, Ms Justice Mary Irvine, said on Friday she would stay the invasive interventions aspect of the orders provided the parents initiate, by Wednesday next, an application aimed at securing an appeal direct to the Supreme Court.
The judge directed the legal costs of the parents in the High Court, and of a guardian ad litem appointed by the court to represent the child’s interests, be paid by the hospital.
The boy — a ward of court referred to as John – suffered catastrophic injuries in a road accident last summer and is said to have no prospect of a meaningful recovery from those.
The hospital had applied for a range of orders allowing it to manage his condition as it considers appropriate, including to refrain from applying invasive treatments in the event of respiratory distress.
The court heard that could occur as a result of administering medication to address regular episodes of dystonia, a movement disorder which, unless fully controlled by medication, causes his muscles to contract uncontrollably.
The parents, who are separated, disagreed with the hospital’s assessment concerning the pain being suffered by their son from dystonia and objected to him being medicated to treat pain caused by dystonia if there was a risk that would cause him respiratory distress and possibly die.
They wanted him 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 a lengthy judgment this week, the judge found John could experience “unimaginable suffering” unless the hospital can manage his condition as it considers appropriate.
Having considered and balanced the constitutional rights of the parents, the family and John, she concluded the orders sought were in his 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”.
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, she said. .
She formed the view the parents 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 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 only return him to a health trajectory worse than that which he faced before.
She rejected arguments the orders sought amounted to accelerating death, which is constitutionally impermissible.
She was “full of admiration” for the parents who have been a constant presence at John’s bedside since the accident and noted his treating team had praised their support and love for their son.
