HSE -v- X (APUM)
Neutral citation (2011) IEHC 326.
High Court
Judgment was delivered on July 29th by Mr Justice John MacMenamin.
Judgment
Doctors treating a women suffering from severe mental illness were given permission to take blood samples without her consent, where the safe administration of her treatment for mental illness required the regular taking of such blood samples.
Background
The case involved a woman being held in the Central Mental Hospital, Dundrum, as a “civil” patient, that is, someone neither prosecuted nor convicted of any criminal offence.
Mr Justice MacMenamin described her history as “long and complicated”. Born in 1962, she was transferred to the Central Mental Hospital CMH four years ago under the Mental Health Act 2001, when she was found to suffer from a severe psychiatric disorder making her a danger to herself and to others, particularly children.
She has been diagnosed as suffering from paranoid schizophrenia and borderline personality disorder, conditions associated with extreme violence.
Her doctors sought to administer a drug regime to ameliorate her condition. However, one of the possible side effects of this regime was a decline in white blood cell count, with a potentially fatal outcome arising from infection. This meant that her blood had to be monitored by taking regular blood tests.
The woman objected to the blood samples being taken and was required to be restrained while they were taken. Her doctors, including an independent psychiatrist retained on her behalf, found she did not have the capacity to make decisions regarding her own welfare.
Following an application to the court last December, the treatment was allowed to proceed. However, the court went on to consider the issues raised by the case in the context of the Constitution and the European Convention on Human Rights.
Dr Harry Kennedy of the Central Mental Hospital drew attention to the fact that while the 2001 Act may permit treatment without consent, there was a possibility it may not permit the drawing of a blood sample without consent, because the definition of “treatment” in the Act allowed treatment specifically of a mental disorder.
Her counsel argued that the term “treatment” should be interpreted strictly, because a number of fundamental rights and interests were raised. The Act contained no safeguards or review procedures for “treatment”.
This meant that there could be an endless series of tests involving restraint without the patient’s consent, raising the question of inhuman and degrading treatment, contrary to the Constitution and the European Convention on Human Rights.
Safeguards did exist under the 2001 Act in relation to certain types of treatment, including psychosurgery, electro-convulsive therapy and the treatment of children, it was stated.
Decision
Mr Justice MacMenamin considered whether the term “treatment” should be interpreted broadly, in the context of the Act itself, constitutional values and precedent.
He said that while the woman enjoyed the right to protection from inhuman and degrading treatment, the primary constitutional values engaged were the need to safeguard her life and health.
The evidence showed that the proposed medical regime at present was in her best interest and the vindication of her rights to life and health must take precedence over her right to autonomy and liberty. He therefore favoured a broad interpretation of the word “treatment”.
The court should allow for a medical procedure which, albeit invasive, was ancillary to the treatment necessary to ameliorate her mental illness. This included the obtaining of blood samples.
He also considered the issue of safeguards in administering such treatment without consent. Constitution and convention rights were at stake, including the prohibition on inhuman and degrading treatment, the right to autonomy and liberty, the right to fair procedures and the rights to an effective remedy, which had been raised by lawyers for the woman.
They argued that the 2001 Act failed to safeguard her rights adequately because it failed to provide for an independent tribunal to determine whether she lacked the capacity to consent to treatment and whether the treatment was appropriate and failed to designate an independent person to represent her where issues of consent would be required. However, they had not challenged the constitutionality of the Act or sought a declaration of incompatibility with the Convention, he said.
All these matters should be fully and properly pleaded, and the case was without direct precedent, Mr Justice MacMenamin said. Before a court decided whether to make a declaration of incompatibility, the Attorney General and the Irish Human Rights Commission should be given an opportunity to appear in the proceedings.
The full judgment is on courts.ie.
Timothy O’Leary SC and Michael Lynn BL, instructed by St John Solicitors, Dublin, for the applicant; Felix McEnroy SC and Barry O’Donnell BL, instructed by Byrne Wallace, for the HSE.