Many members of the Council have found themselves being forced to correspond with the Health Service Executive to complain that the HSE have been operating unlawfully with regard to consent for the HSE’s involvement with a child from a Family founded on Marriage.

We welcomed therefore clarification on the lawful position in the HSE’s recently published document titled, "HSE Children and Family Services - Guidelines for Obtaining Consent for Non Emergency Treatment/Services from Parents of Children and Young People Under the Age of 18 years. Children and Families Document (Ref C+F 2/2009)" (Download here)

Whilst the Council are pleased that the HSE at last are being forced to acknowledge generally that they must not involve themselves with any child of the Family founded on Marriage without first securing the joint power and authority of the Family it is very disturbing that after much correspondence with them pointing out the applicable law the HSE have decided to pretend there is a "loophole" in the form of certain legal advice to their staff which is designed to give the HSE some legal authority which they do not have and which will cause immense distress and conflict and will unfortunately force Guardians to successfully sue a medical practitioner and the HSE to ensure that their authority over the welfare of their child is properly respected.

I refer specifically to the Section on Procedures at 8.4, wherein it states,

"Where, in the view of the service provider, the presence of both guardians is creating conflict and is not considered to be in the child’s best interests, the custodial parent will attend with the child where mutual agreement between the guardians cannot be reached in relation to attendance arrangements. A commitment will be given to keep the non-custodial parent updated, by telephone during the scheduled appointment if necessary, of any treatment decisions which are required."

This is not only stupid as it is clearly in conflict with what the HSE state in the previous subsections, 8.1 and 8.2  (see below), but can only be designed to discount the true joint-power and authority they must defer to. Furthermore this subsection of the Guidelines, where it is applied, will undoubtedly encourage and foster conflict between Spouses where the HSE is actually mandated, as all organs of the State, to facilitate the better functioning and continuation of the Family as a unit.

"8. Procedures

1. At the point of referral, the names and contact details of any legal guardian of the child will be requested and recorded, and written confirmation of their consent obtained on the Consent Form. Where a legal guardian may not be residing with the child, the wishes of the child’s guardian to be informed of the child’s care and/or treatment will be sought by letter or phone and recorded on the Consent Form. If it is not possible to contact a guardian or this information is unknown/not provided, this must be recorded on the form which will be placed on the child’s file. Where a court order is in place to prohibit a guardian’s rights to be involved, this must be seen by the HSE.

Please note: A court order prohibiting unsupervised contact with a child does not prohibit a guardian’s right to be involved in decision making concerning their child. An application for such directions under the Guardianship of Infants Act 1964 must be granted should this be necessary.

2. Consent of both Guardians is required for treatment/service unless one guardian is not contactable or indicates that they do not wish to be consulted or that they wish the custodial guardian to make any necessary decisions on their behalf.

The reason why the HSE requires the approval of both Guardians in the Family founded on Marriage is because the parents/spouses must act at all times together in the involvement of a Third Party. The Guardianship of Infants Act, 1964 specifies that they shall be guardians jointly.

SECTION 6    Rights of parents to guardianship.

6.—(1) The father and mother of an infant shall be guardians of the infant jointly.

This means that any Third Party - including the HSE - who wishes to be involved with a child must first secure the joint power and authority of the Family and that means the informed consent of both the Husband and the Wife.

In Section 8.4 the HSE believe they have the right to eliminate the authority of one the Guardians where it says, "Where, in the view of the service provider, the presence of both guardians is creating conflict and is not considered to be in the child’s best interests".

This claimed ability by the HSE to have such opinions is way beyond their authority and negates everything that it says in the previous three pages of Guidelines because it basically says that the HSE can decide what's in the child's interest whereas the law and the rest of the Guidelines state that only the Spouses in a Family founded on Marriage are entitled to do that.  

The HSE have it completely wrong also where they state, "the custodial parent will attend with the child where mutual agreement between the guardians cannot be reached in relation to attendance arrangements."

They are wrong because the law states that NO INVOLVEMENT, therefore no attendance, CAN BE ARRANGED BY THE HSE unless there is consent by both parents/spouses. This subsection also contradicts what is stated in the previous Section 7, "Definition of Legal Guardian" (below) which acknowledges that the so-called "custodial" parent has no special authority to act on their own against the wishes of the other Spouse/parent.

7. Definition of Legal Guardian of a child : Where both parents are married, the child’s mother and father are legal guardians; Following a separation or divorce, both parents remain the child’s legal guardian, even if the child is not living with them and they have not been awarded custody of the child;

The above criticisms of the Guidelines show the HSE is wrong in law and any medical practitioner - OR NURSE OR EVEN ANY SCHOOL OR OTHER THIRD PARTY - who follows their Guidelines can be sued under Section 10 of the Guardianship of Infants Act, 1964

SECTION 10 Powers and duties of guardians.

10.—(1) Every guardian under this Act shall be a guardian of the person and of the estate of the infant unless, in the case of a guardian appointed by deed, will or order of the court, the terms of his appointment otherwise provide.

(2) Subject to the terms of any such deed, will or order, a guardian under this Act—

( a ) as guardian of the person, shall, as against every person not being, jointly with him, a guardian of the person, be entitled to the custody of the infant and shall be entitled to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the infant and for the recovery, for the benefit of the infant, of damages for any injury to or trespass against the person of the infant;

It is time you, the Minister for Health (and Children), took responsibility for the HSE's wayward behaviour. Since its inception the attitude of those who control the HSE has been in contempt of the authority of parents, particularly those in the Family founded on Marriage. It is inconceivable that the quality of legal advice is so poor that they believe they have a superior authority to a Guardian of a child IN A Family founded on Marriage and that they can discount one Guardian’s authority if the other Guardian so wishes.

These Guidelines in their present form represent an impermissible attack on the Family founded on Marriage and any Spouse/parent who experiences their authority being violated by them is entitled to take an action against the State and sue for costs and damages. The Council are pledged to support any such action.

It behoves you therefore to reduce any unnecessary suffering by Families and to not incur any unnecessary costs and damages to the public purse by retracting the erroneous Guidelines and ensuring that they are replaced by lawful ones.

The Council is willing to help in the drafting of the Guidelines if their assistance is required.

God bless,  

Roger Eldridge

Chairman