The Minister for Health is intervening in a European human rights case involving a cancer patient who allegedly had part of her breast removed without her consent.
Jennifer Carroll MacNeill’s intervention comes amid concerns the judgment could cause an increase in medical negligence cases in Ireland.
Last June, the European Court of Human Rights (ECHR) unanimously agreed that the authorities in Spain, where the woman is based, breached her right to privacy when operating doctors removed parts of her areola and nipple allegedly without her consent.
The Spanish government asked for the case to be referred to the European court’s Grand Chamber, which will decide in April if the case needs to be considered again.
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While the Irish Government believes the information given to the woman in advance of the procedure would not have met its threshold of informed consent, it believes there is a “risk” that the European court’s decision could cause an increase in medical negligence cases taken here.
The woman, who was born in Venezuela, was diagnosed with breast cancer for the second time in 2016, when she was 60 years old. In January 2017, a hospital in Madrid, called Gómez Ulla Hospital, recommended the woman go through an operation on her right breast to remove cancerous tissue while keeping as much of her breast as possible. The woman signed an informed consent form.
The operation was carried out that February and, during the procedure, doctors decided to remove the woman’s nipple and areola. In September of that year, the woman formally complained to the health department of the Madrid autonomous community, contending she had consented only to breast-conserving surgery and the removal of lymph nodes, and not to the removal of her nipple and areola – where no cancer had been present. The woman claimed €100,000 in compensation.
She took a case to the Madrid high court of justice, which decided in 2020 that the woman had given adequate consent to the procedure. The woman then took her case to the ECHR in Strasbourg in 2022.
In its unanimous decision last June, the ECHR said the procedure “had potentially significant impacts on a woman’s physical and mental wellbeing, her image and self-esteem, and her sexual life”.
It said it would not have been sufficiently clear to someone with no medical knowledge that signing a consent form meant accepting the possible removal of her nipple and areola. It said the woman’s doctors should have informed her beforehand “about the possibility of a removal of her areola and nipple”.
Minister for Foreign Affairs Helen McEntee this week asked for Government approval for Ireland to intervene as a “third party” in the case, in advance of it being considered by the Grand Jury of the ECHR later this year. Ms McEntee made the request on behalf of the Minister for Health.
A spokeswoman for the Department of Health said Irish clinicians feel the information given to the woman “in this particular case” by her doctors in Spain “would not have met the threshold required by Ireland’s current national consent policy”.
“Nonetheless, there is a risk that the language and reasoning used by the (ECHR) could invite new legal arguments, increasing the volume and complexity of clinical negligence litigation, and that the national consent policy would need to be revised depending on the outcome of the case,” the spokeswoman said.
“For these reasons, the approval of the Government was sought to seek leave to intervene on this case. This is in accordance with the relevant procedures governing proceedings before the [ECHR].”
She said the Government “is not taking a view on what happened in the particular case”, and sought to intervene only because the result of the case “may have implications for national consent policy in Ireland and for medical negligence litigation”.
