Court rules on psychiatric patient

A High Court judge has made orders with allowing doctors administer certain treatment to a seriously psychiatrically ill woman against her wishes.

The ruling is being seen as a very substantial development in mental treatment law.

The treatment - regular blood tests - is considered essential to safeguard against potentially life-threatening side effects from medication.

Issues raised in the case, including whether the Mental Health Treatment Act 2001 is compatible with the State’s obligations under the European Convention on Human Rights, have implications for adults with mental illness, disabled persons and residents of nursing homes.

Those issues - including whether treating doctors can remove the right to consent to treatment on the basis of a lack of capacity without an independent review as to whether that incapacity finding was correct or without a person being assigned to represent the woman on that issue - were “very important” and the case was without direct precedent, Mr Justice John MacMenamin said today.

He has asked lawyers for both sides to consider his judgment before considering whether to invite the Attorney General and Irish Human Rights Commission to participate in the case to address such issues, including possible incompatibility of the 2001 Act with the ECHR.

The judge also noted the Mental Capacity and Guardianship Bill 2008, which provides certain protections for vulnerable people suffering from mental incapacity - has not yet become law. There was a gap in understanding between those who favoured a “rights-based approach” to such measures and those who emphasise the daily challenges of caring for such persons, he said.

The proceedings relate to a 48-year-old seriously ill woman, diagnosed with paranoid schizophrenia and a borderline personality disorder, who has been an involuntary patient in psychiatric institutions for some years. She has had a long and complicated history and was moved to her current unit four years ago because she was considered a risk to herself and others.

She has had a potentially life-threatening adverse reaction, the destruction of white blood cells, in response to three different anti-psychotic drugs being administered to her.

A decline in white blood cell count can lead to a fatal outcome and doctors say it is essential the woman’s condition is monitored regularly via regular blood samples. However, because the woman sometimes violently opposes the taking of samples, they have been taken in circumstances where she was sedated and restrained.

The HSE initiated the proceedings seeking orders allowing that treatment continue and seeking declarations it is lawful. The woman, described as “a person of unsound mind not so found”, was represented by her solicitor.

In his judgment, Mr Justice MacMenamin noted the case raised very serious issues concerning the protection and vindication of the rights of vulnerable people suffering from mental capacity.

The case involved the court being asked for the first time to review the substance of a medical intervention for adults deemed not to have capacity to make decisions about treatment. It involved balancing several rights, including to life, personal liberty, bodily integrity and human dignity.

The judge noted a number of psychiatrists, including the woman’s own independent psychiatrist had concluded she lacked the necessary mental capacity to make decisions whether the treatment was in her best interests. However, the woman had instructed her lawyers she regards herself as being aware of the treatment and is competent to challenge it.

The case centred on the definitions of “treatment”, “mental disorder” and “mental illness” in the 2001 Act. The judge noted the Act is “silent” concerning any review for “treatment” and that had potentially serious consequences, including perhaps endless tests. The term “treatment” was also ambiguous.

The judge found the woman is suffering from a mental disorder; the uncontested medical evidence was the medication would ameliorate the mental disorder and the associated blood tests were necessary to safeguard her life. The clinicians were in no doubt about the woman’s incapacity to make choices and nor could the court be, he said.

The court could make a best-interests assessment based on their views although that involved a curtailment of the right to liberty and autonomy.

The law allows for a broad reading of the word “treatment” in the Act when those treating a patient conclude she cannot consent, he said.

He concluded the court, in interpreting the Act and in assessing the woman’s best interests, should allow for the medical procedure [blood tests] which, while invasive, was ancillary to and part of the procedures necessary to ameliorate her mental illness. “Treatment” could not include procedures entirely unrelated to a mental illness, he stressed.

Applying those principles, the obtaining of blood samples as part of and ancillary to the treatment in this case was lawful, in the woman’s best interest and in accordance with the Act. His finding was not, he stressed, open-ended and reports would have to be regularly provided to the court concerning the treatment.

The judge made clear his judgment was confined to interpretation of the Act of 2001 but the defendant’s case ranged beyond that in relation to whether the absence in the Act of provision for an independent review of the woman’s capacity and other issues adequately safeguards her rights under the Constitution and ECHR.

In this case, there was no challenge to the constitutionality of the Act and no application for a declaration of incompatibility with the ECHR, he said. These matters would have to be fully pleaded.