Lawyers for a hospital treating a catastrophically brain injured boy have told the Supreme Court a child's right to have their parents decide on his medical treatment is not "pre-eminent" and must be considered alongside other rights of the child.
The hospital has said it is not seeking to "accelerate" the death of the boy by applying for permission to refrain from aggressive interventions should his condition substantially deteriorate.
Senior Counsel Conor Dignam told the court the boy is in a "dire" situation with no prospect of a meaningful recovery. His parents' belief or hope his condition may improve is "in the teeth" of overwhelming and unanimous medical evidence concerning his prognosis, he said.
The court was required to consider and apply a "best interests" test which involved consideration of issues including freedom from pain and the right to a natural death and to die with dignity.
He said the High Court correctly decided the parents' refusal to recognise the reality of their son's condition and prognosis amounted to a failure of parental duty justifying State intervention, via the High Court wardship procedure, and that the orders sought by the hospital are in the child's best interests, he submitted.
Mr Dignam was opposing an appeal by the parents against those orders, including one making him a ward of court.
The appeal, before a five-judge court will examine the constitutional rights of the family and child and the threshold for State intervention in relation to a child's medical care and whether a child can be taken into wardship for the purpose of obtaining such orders.
The hospital says the boy, referred to as John, will make no meaningful recovery from catastrophic injuries sustained in a road accident earlier this year and it needs the court orders to treat him as it considers appropriate.
Those include orders permitting it to give pain-relieving medications for dystonia, a movement disorder which causes muscles to contract uncontrollably.
His parents are concerned the medications can compromise their son's respiratory function and that the hospital wishes to withhold ICU interventions should John's condition substantially deteriorate and effectively administer palliative care.
They say it is too soon after the accident to determine his prognosis and he should receive any treatment that will keep him alive.
On the second day of the appeal on Wednesday, Mr Dignam said it is "unfair" to John's treating clinicians to suggest his life is being treated as of less value than the lives of other children.
It was precisely because of the value placed on John's life the clinicians considered the benefit and burden of certain treatments. They considered the benefit to him of pain-relieving medications which might trigger respiratory distress outweighed the burden of those but that the burden to him of ICU interventions outweighed the benefit.
That was not an "acceleration of death" but the outcome of a consideration of issues clinicians faced daily in hospitals and hospices across the country.
Douglas Clarke SC, for the guardian appointed by the court to represent John's rights, said the court's intervention was appropriate and the use of the wardship mechanism was not a disproportionate interference with the rights of John or his parents.
He said the circumstances for State intervention over failures of parental duty have been extended by Article 42a, the child rights amendment to the Constitution.
Failure of parental duty is no longer limited to physical and moral issues and now extends to situations where the safety and welfare of children is likely to be affected by such failure, he said. State intervention is not contingent on establishing culpable behavior by parents and extends to the effects on the child of acts and omissions of parents.
The changes effected by Article 42a are "very significant" for this case, he said.
While there was no suggestion of "culpable" failure by John's parents, it did not follow there was no failure of parental duty within the meaning of Article 42A or that the High Court was not correct in granting the orders.
The appeal continues tomorrow.