Tenth Annual Student Human Rights Conference
Beyond Words: Freedom of Expression and its Contemporary Challenges
Saturday 14th March 2009
Panel Theme:
Currrent Challenges to Freedom of Expression
Paper Title:
Refusal of
Perspective
Author:
Ciara Staunton
Medical
Treatment
and
Relgion-An
Irish
It is a well established principle that one must consent to medical treatment. 1 The
corollary of this is the right of a competent person to refuse medical treatment. 2 A
patient may refuse medical treatment for rational or irrational reasons or for religious
reasons.3 Article 44.2.1 of the Irish Constitution states that “Freedom of conscience and
the free profession and practice of religion are, subject to public order and morality,
guaranteed to every citizen.” As Ireland becomes more multi cultured, there has been a
rise in the number of different religions being practised. This change can be seen quite
clearly in the influence of religion on a patient’s medical choices. However how have the
courts reacted? Have the courts acknowledged that a person’s religion dictates that they
refuse treatment which can save their life or has a much more paternalistic approach
been adopted?
Due to time constraints, I will only focus upon Irish cases in this presentation. An
analysis of English cases is contained in the paper. Case law on refusal of medical
treatment on religious grounds has centred around children. However the Irish courts
have not dealt with it in the same way as the English courts.
In North Western Health Board v H.W. and C.W. 4 the child’s parents were Jehovah
Witnesses who refuse to consent to the PKU test for their child. The PKU test is a test
carried out on children within the first 72 to 120 hours after birth. It tests for a number
of diseases which are treatable. It is a blood test and the parents objected to the test. If
damage has been caused by the diseases, it is reversible. The test is not carried out
under legislation, but it is carried out as a matter of course. While the parents objected
to giving a blood sample, they were prepared to supply hair and blood samples.
In this case, and indeed with all Irish childcare cases, the impact of the Irish Constitution
is of vital importance. Article 41.1.1 states that the family is “the natural primary and
fundamental group of Society” and as such possess “inalienable and imprescriptible
rights, antecedent and superior to all positive law”. However, Article 42.5 notes that:
“In exceptional cases, where the parents for physical or moral reasons fail in their duty
towards their children, the State as guardian of the common good, by appropriate means
shall endeavour to supply the place of the parents, but always with due regard for the
natural and imprescriptible rights of the child.
1
An exception would be in emergency situations where there is often no possibility of obtaining consent.
As stated in Schloendorf v Society of New York Hospital: “Every human being of adult years and sound
mind has a right to determine what shall be done with his own boody; and a surgeon who performs an
operation without his patient’s consent commits an assault, for which he is liable in damages.” (1914)
105 NE 92 at 93.
2
See Sidaway v Board of Governors of Bethlem Royal Hospital [1985] A.C. 871, Cruzan v Director,
Missouri Department of Health 497 US 261 (1990), Rogers v Whitaker (1992) C.L.R. 479.
3
In Ireland this was recognised in In re a Ward of Court (No 2) [1996] 2 IR 79 at 156.
4
[2001] 3 IR 622.
Author: Ciara Staunton
University: Law Reform Commission of Ireland
Programme: Bioethics: Advance Care Directives
Tenth Annual Student Human Rights Conference
Beyond Words: Freedom of Expression and its Contemporary Challenges
Saturday 14th March 2009
In this case, the court did not order the test to be carried out. It was not deemed to be
“exceptional” circumstances which would require the state to become the default parent.
However, the court did not state what would be “exceptional” circumstances. Must a child
be on their death bed before the court is willing to intervene?
J.M. v The Board Management of St. Vincent’s Hospital 5 and Fitzpatrick v FK6 saw the
court ordering a blood transfusion despite objections to the treatment from both women
as they were Jehovah’s Witnesses. In JM the court felt that the woman was “preoccupied
with her husband and his religion as Jehovah’s Witness rather than with whether to have
the treatment and her own welfare.”7 This is despite the fact that her husband told her
that she should not feel obliged to refuse to consent to the transfusion. In the K case,
Laffoy J ordered the blood transfusion to be carried out as she felt that Ms K did not
understand the implications of her refusal. This is despite the fact that Ms K stated that
she knew it was a matter of life and death and that she told the Master of the Hospital
that she would die as a result of her refusal.
It appears that the court will find that a patient is incompetent and order the transfusion
rather than respect a patient’s refusal on the basis of their religion. While the
paternalistic attitude is understandable, refusing to allow a patient to exercise their free
practise of their religion not only is contrary to their right of privacy and autonomy but
could be considered to be contrary to the constitution. Freedom of expression of one’s
religion includes the freedom to follow the teachings of that religion. Jehovah’s Witnesses
carrying a “no blood” card is now so common that many hospitals have policies in place
for treating members of the Jehovah’s church. Yet there appears to be a reluctance from
the courts to follow the refusal of treatment. A Jehovah’s Witness has made the decision
to follow the teachings of the church and part of the expression of their religion is to
refuse blood transfusions. However there is a tendency from the courts to find that a
patient does not have the capacity to make the decision as evidenced in JM and the K
case.
However, while the court should respect a patient’s expression of their religion by
upholding their refusal of medical treatment, this should not be absolute. Death is final,
thus the courts must proceed with caution. Certainly the Irish courts seem to be adopting
this approach. However this approach must not be adopted as a matter of course if
respect is to be given to a person’s religion. A balance must be struck between a bias in
favour of preserving life and the right to refuse medical treatment for religious reasons. A
balance which the Irish courts need to work on.
5
[2003] 1 IR 321.
[2008] IEHC 104.
7
[2003] 1 IR 321 at 325.
6
Author: Ciara Staunton
University: Law Reform Commission of Ireland
Programme: Bioethics: Advance Care Directives