The judgment of Mr. Justice Gerard Hogan in Temple Street v. D & Anor, published yesterday, makes for dramatic reading. It is not often that a sitting of the High Court occurs in the private residence of a judge at 1 a.m., but it is not the first time that the Irish medical profession has made emergency court applications when treating Jehovah’s Witnesses.
In this case, concerning Baby AB, the medical evidence presented to Hogan J. was that a blood transfusion “was clinically necessary and urgent and all possible alternatives had been exhausted.” Hogan J., referring to issues of religious belief, stated:
A secular court cannot possibly choose in matters of this kind and, of course, a diversity of religious views is of the essence of the religious freedom and tolerance which [the Constitution] pre-supposes. Nor can the State be prescriptive as to what shall be orthodox or conventional in such matters, for, as Jackson J. put it in a noted US decision concerning the Witnesses, West Virginia Board of Education v. Barnette:
“…if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”
It probably suffices for present purposes simply to say that the right of a properly informed adult with full capacity to refuse medical treatment – whether for religious or other reasons – is constitutionally protected: see, e.g., Fitzpatrick v. FK (No.2)  IEHC 104,  2 I.R. 7.
However, the person at issue (AB) was a minor and Hogan J. relied on Article 42.5 of the Constitution to grant an order allowing the blood transfusion to take place. Article 42.5 provides:
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.
This requires a failure in moral duty on the part of parents, so the conclusion is that adherence to a particular religious belief may, in so far as the State or society is concerned, constitute such a failure. Hogan J. said that:
the use of the term “failure” in this context is perhaps a somewhat unhappy one, since there is no doubt but that CD and EF, acting by the lights of their own deeply held religious views, behaved in a conscientious fashion vis-à-vis Baby AB. The test of whether the parents have failed for the purposes of Article 42.5 is, however, an objective one judged by the secular standards of society in general and of the Constitution in particular, irrespective of their own subjective religious views.
He concluded that the Court has “a jurisdiction (and, indeed, a duty) to override the religious objections of the parents”.
The judgment is likely to be of interest to opponents of greater recognition of the rights of the child in the Constitution, particularly those who fear greater State opportunities to override the rights of parents.