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Health & Prosecutions Update: Supreme Court Ruling to Impact Future Scope of Wardship Orders

26 January 2021

The recent Supreme Court decision in Re JJ concerned treatment orders sought by a children’s hospital in respect of a brain-injured boy, where treating clinicians felt that “aggressive life-sustaining measures” such as mechanical ventilation would not be in his best interests in the event of a medical crisis. The boy’s parents disagreed with the hospital and an application for wardship was made to the High Court, with Mason Hayes & Curran LLP instructed by the hospital.

Treatment orders

Ms Justice Mary Irvine granted the treatment orders, but her decision was appealed by the boy’s parents to the Supreme Court in a rare leap-frog appeal. A five-judge panel heard the appeal in a virtual court hearing across three days in December 2020. The Attorney General and Irish Human Rights and Equality Commission were joined as amicus curiae.

Appeal dismissed

The Supreme Court unanimously dismissed the appeal, with a 107-page majority judgment, and a concurring 111-page judgement from Mr Justice Liam McKechnie. However, the Court refined the scope of the orders granted to protect the “primacy of parental decision-making”.

Conclusion

This case provides detailed guidance for clinicians on medical treatment for children generally, including consent to treatment or withholding treatment, which will greatly assist medical and legal practitioners in this area. The case was described by the Government’s Special Rapporteur for Children as the most significant children's rights decision of Irish courts in 15 years. 

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Fiona McNulty

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