The High Court decision on the Jehovah's Witness baby makes clear for the first time that doctors will be acting lawfully when they override parents' religious objections, writes Simon Mills
On Thursday the High Court directed that a five-month-old child requiring heart surgery could be given a blood transfusion, the objections of her Jehovah's Witness mother notwithstanding. In so doing, the court exposed some of the fault-lines that exist in the supposedly smooth rule that parents know what is best for their children and are ideally placed to take healthcare decisions for them.
When parents purport to give or withhold consent to their children's medical treatment, certain tensions can arise. The principal conflict is between the rights of the Irish "constitutional family" and the rights of the child as an individual. A related, secondary problem is limiting parents' freedom to impose their religious beliefs on their child.
It is a relatively well-known phenomenon of Irish law that the family has certain rights, recognised and guaranteed by the Irish Constitution, into which the law will not intrude. In general, a sphere of familial autonomy is recognised such that parents can take decisions on behalf of their children - where they will be educated, with whom they should live and (within limits discussed in this article) what medical treatment they should have - and the courts or legislature will only rarely intervene.
Some have argued that this conception of rights fails to acknowledge the rights of the child and gives too much freedom to parents who really do not have their children's best interests at heart. Nonetheless, it is clear that under current Irish law, parents retain a comparatively extensive right to take healthcare decisions on behalf of their child. What is not clear is how extensive that right is.
Where benefit to a child from a medical procedure is clear, there is no legal or philosophical obstacle to accepting the principle that if we must have consent to treatment of a child, then parental consent is an appropriate proxy. However, confusion starts to come to the fore when what the parents wish for the child is not clearly beneficial to the child or - more gravely - might actively harm the child. Put in the language of the courts, parents can sometimes take decisions that are not in the "best interests" of the child. In such circumstances, when do the rights of a parent to decide for a child yield to the right of the child to have her "best interests" safeguarded?
Examples of such decisions are obvious. Parents who refuse to have their children vaccinated are putting those children at risk of the infections against which the immunisation would have protected the child, yet nonetheless vaccination refusal is permissible.
Similarly, there is majority acquiescence to the right of parents to submit their male children for circumcision in spite of the fact that many would question whether sufficient material health benefits attach to the procedure to justify performing the operation on a self-evidently non-consenting child.
In 2001, the Supreme Court upheld the right of two Donegal parents to refuse permission for the PKU diagnostic test (the "heel prick" test for inherent metabolic disorders) to be performed on their toddler child.
This involved the court, by a four to one majority, deciding that the rights of the parents - as heads of the constitutional family - gave them the power to refuse the test in spite of the fact that all of the judges who expressed an opinion on the matter, including those who found in favour of the parents, felt that the PKU test would be in the child's "best interests".
Yet this willingness to grant parents a sphere of autonomy within which to take healthcare decisions on behalf of a child, including some decisions that may not be in the child's best interests, is not absolute. In the "PKU Test" judgment, each of the Supreme Court judges left the door open to circumstances where the life, health or welfare of the child faced a severe threat: in such a case, it was implied, the court might intervene.
And so it has proved. Thursday's decision was not the first such decision by the Irish courts. In March 2000 The Irish Times reported the case of a child where the parents were reluctant (on religious grounds) to acquiesce to a blood transfusion and, as a result, a District Court intervened to direct that the transfusion be administered. However, it was the first time that the High Court had pronounced on the matter.
The distilled question that arises in "Jehovah's Witness minor" cases is whether parents have a right to impute their religious values to their infant child to the detriment of that child.
Up to a point, they do: clearly there is little objection voiced to parents taking their children to religious services, compelling them to wear certain garb at those services or, as we have noted, causing male children to undergo circumcision.
Yet as the opinion of the Supreme Court in the PKU Test judgment hinted, this is not an untrammelled freedom of religious indoctrination and at some point - typically where the child's life, health or welfare is put seriously at risk - the law can and will step in.
The legal principle involved was most memorably enunciated by a US judge who wrote: "Parents may be free to become martyrs themselves, but it does not follow that they are free in identical circumstances to make martyrs of their children."
The High Court decision makes absolutely clear for the first time that under Irish law, doctors will be acting lawfully when they override parents' religious objections to give a blood transfusion in a child's best interests and where not to transfuse would create a serious risk to the life or health of the child.
Dr Simon Mills is a barrister, a doctor and the author of Clinical Practice and the Law. He regularly writes and lectures on the legal and ethical aspects of medicine