A man with a learning disability who was recently diagnosed with cancer can be lawfully treated under a palliative care regime rather than undergo aggressive treatment including surgery, the president of the High Court has ruled.
The medical evidence was that the man lacks capacity to understand treatment options, would be unable to communicate the side-effects of aggressive treatment, it would be “difficult and probably impossible” to have him lie still for radiotherapy and he might rip out intravenous tubes post-surgery, endangering his safety.
Arduous surgery and cell toxic treatment would be reasonable if the man could understand, his treating clinician said. He believed the man could not endure such treatment and it would be neither moral nor ethical to impose it on him.
Aged in his 50s, the man has lived in care for most of his life. He has a mild to moderate learning disability and various health conditions, was made a ward of court in 2009 and was recently diagnosed with cancer. His case came before Mr Justice David Barniville on Monday via an application by the HSE concerning his treatment.
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Cautious approach
Donal McGuinness BL, for the HSE, said the situation was urgent and three doctors – the man’s treating clinician, a consultant radiologist and a consultant oncologist – favoured a cautious approach of palliative treatment and not the more radical option of radiotherapy, chemotherapy and surgery.
Treatment options were explained to the man by his treating clinician, who believed the man did not understand what he was being told. However, the man had indicated he did not want surgery, radiotherapy or chemotherapy but was willing to take tablets, counsel outlined.
Having set out the relevant case law, Mr McGuiness submitted this case would be appropriately addressed via a court declaration that the proposed treatment plan is lawful, rather than court orders consenting to the treatment proposed.
A solicitor representing the man’s interests in wardship supported the HSE’s application, saying she had concluded it would be arduous and stressful for him to undergo the more aggressive treatment “with no prospect of success”.
The man “is very much at home where he is” and it would be “less traumatic for him” if he were kept there as long as possible, she said.
Appropriate
Mr Justice Barniville ruled that, in this case, it was appropriate to grant a declaration that the proposed treatment plan is lawful. While he considered he could also have granted consent to that plan, he said that was not necessary given his view on its lawfulness.
The case law is that consent is not a prerequisite for all treatments, he said. While doctors will usually give treatment to prolong life, they are not obliged to if they consider it will cause more harm and outweigh the benefits it may bring and that was the situation here, he said.
On the evidence, the more aggressive treatment option would be arduous for any person. It would involve lying in a machine for radiotherapy over six weeks, then chemotherapy and surgery after which there would be a transfer to an intensive care unit for close observation and insertion of tubes critical to his recovery. Removal of those would have disastrous outcomes and the surgery carried risks, including a significant risk of sepsis.
It is clear the man lacks capacity to give a reasoned decision one way or the other and the unanimous medical view is that the treatment that is most appropriate, in his best interests, reasonable and ethical is supportive care/palliative care for the time he has left rather than forcing him into a care pathway the doctors believe he will be unable to tolerate, the judge said.
