http://bmj.com/cgi/content/full/323/7322/1149
BMJ 2001;323:1149 ( 17 November )
Doug Payne Dublin
The Irish Supreme Court has supported the rights of a couple who refused to
allow doctors to carry out a screening test on their newborn baby.
It rejected a challenge from one of the country’s health boards to the
refusal of a couple to allow a phenylketonuria (PKU) screening test to be
carried out on their infant son.
The court said the North Western Health Board (NWHB) was effectively seeking
to have the test made compulsory. That, said Ms Justice Denham, would have
"a far-reaching" effect, turning into law something which was
presently only departmental policy and would also establish "a very low
threshold" for court intervention in future cases involving children.
Mr Justice Hardiman, calling the case "utterly novel," said the
move to perform a treatment without consent was "a trespass, a battery and
a breach of constitutional rights."
The only dissent in the four-to-one majority decision came from the Chief
Justice. Mr Justice Keane said constitutional provisions regarding the family
did not oblige the court to allow the wishes of the parents to prevail over the
best interests of the child.
All five judges agreed that the medical evidence was that the PKU test,
which screens for the presence of four metabolic and one endocrine condition,
is of benefit to babies. But Mr Justice Murray said while he believed the
decision by the parents in this case was "manifestly unwise and
disturbing," it was a decision they had the liberty to take.
The North Western Health Board had previously secured a care order in
relation to another of the couple’s children who was returned to the couple
after the test was carried out. Mr Justice Hardiman said the application for
that order was inappropriate.
A similar care order secured on the child of another couple has been
successfully challenged in the courts.
A PKU screening test is administered to newborn babies in
all of the republic’s maternity hospitals and may also be carried out by public
health nurses. The Supreme Court’s decision last week, however, clearly
emphasised the fundamental tenet of informed medical consent.
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