HIGH COURT Fitzpatrick Anor -v- K AnorJudgment was given by Ms Justice Mary Laffoy on April 25th.
JUDGMENT
The court found that an ex parte decision of the
High Court to permit the master of the Coombe Women's Hospital to
have a blood transfusion administered to a woman who had refused it
on religious grounds, while flawed, was not a denial of her
constitutional rights and that the action was justified by the
circumstances of the case.
BACKGROUND
The case concerned a woman, Ms K, from the
Democratic Republic of Congo (DRC), who had a baby boy in the
Coombe Women's hospital on September 21st, 2006, at 9.45am. She
suffered a massive post-partum haemorrhage resulting in
cardiovascular collapse. As O Negative blood was being prepared for
transfusion, she told medical personnel she could not have a
transfusion because she was a Jehovah's Witness.
Hospital personnel proceeded to resuscitate and stabilise her for about an hour and a half using artificial products, but were concerned that bleeding would start again. Although she was told a number of times through a friend who was interpreting that without the transfusion she could die, she persisted in her refusal to accept it.
The master of the hospital, Chris Fitzpatrick, was called to the delivery suite at about 11.30am and concluded a blood transfusion was necessary to save her life. After further discussions with Ms K, he concluded that her refusal was not a valid refusal because of doubts about her capacity.
He obtained an ex parte order from Mr Justice Henry Abbott in the High Court allowing the hospital to proceed with the transfusion, which took place at about 2.35pm. Ms K made a full recovery.
A full plenary hearing then took place over 37 days and the reserved judgment was delivered by Ms Justice Laffoy. She said that the core issue to be decided was whether, and if so in what circumstances, a court may intervene in the case of a patient who is an adult and not non-compos mentis, and who has refused medical treatment, in order to authorise a hospital to administer such treatment.
The first question for the court to decide was whether Ms K had given a legally valid refusal of treatment, which raised the question of her capacity at the time she was refusing it. The second was whether, if this decision was valid, the court was entitled to have regard to her baby's constitutional rights and that these outweighed her right to the free practice of her religion and her autonomy.
The Attorney-General was joined in relation to the baby's constitutional rights, but counsel for him urged caution in that the baby's right to life was not an issue. In fact, it later emerged that, while Ms K had told the hospital that the baby's father was somewhere in the DRC and could not be contacted, so that hospital personnel were concerned that she was the baby's only parent and there would be no one to care for him if she died, the father was in Ireland and visited her twice in the hospital.
The capacity question was decided first. After considering the case law on the question from Irish and other jurisdictions, Ms Justice Laffoy outlined the principles to be followed in deciding on whether a patient had the capacity to make an informed decision to refuse medical treatment.
She then outlined the basis for the granting of the ex parte order. The master of the hospital had outlined to the court that Ms K had first visited the hospital on July 6th, in the company of a friend, Ms F. Her language was French, she did not speak any English and her friend interpreted for her.
On admission to the hospital she gave her religion as Roman Catholic. It was only when the transfusion was about to be administered that she said she was a Jehovah's Witness. Following a long labour and difficult delivery she had bled massively, losing between 70 and 80 per cent of her blood.
Because of the language difficulties, her condition following the birth and the haemorrhage, and the fact that she had not alerted the hospital in advance to her religious beliefs, counsel for the hospital said that the question was open to the court "as to what extent her refusal was made on the basis of an informed decision".
Mr Justice Abbott stated that he was of the view that she was competent, but that she might lapse into unconsciousness where she would no longer be so. However, he said he was prepared to override her decision on the basis that the welfare of her child, newly born into the State with no other parent in sight, was paramount, and it was in the interests of the child that the wishes of his mother, which might result in her death, should be overridden.
DECISION
Ms Justice Laffoy rejected the argument that the
capacity issue had not been argued before Mr Justice Abbott.
She said that the fact that Ms K gave false information about her religion when booking had a bearing on the capacity question. Had she booked in as a Jehovah's Witness, preparations could have been made to deal with the kind of emergency that occurred, in line with her religious beliefs.
She also noted that Ms K did not have the advance directive card normally carried by Jehovah's Witnesses to assist medical personnel. While discussions were taking place relating to the dangerous situation she was in, she told the master that, as an alternative to the transfusion, she could be given Coke and tomatoes.
Different evidence was given by experts for both the plaintiffs and Ms K on how necessary a blood transfusion was to save her life. Ms Justice Laffoy said that the contention that a threat to life should be established "beyond reasonable doubt, or as an absolute minimum on the balance of probabilities" was fundamentally flawed, as it would place an impossible burden on clinicians.
"If, as a competent adult, the patient refused to accept the treatment and no issue arises as to the capacity of the patient to make that decision, the clinician's duty to provide such treatment is discharged. However, if an issue arises as to the capacity of the patient to refuse treatment, the duty of the clinician to advise on and provide the appropriate treatment remains."
She found that the appropriate medical treatment was a blood transfusion, that the emergency continued until 2.35pm, when it was administered and that the hospital did not exceed the terms of the ex parte order.
Referring to the capacity issue, she found that the master and the hospital should have doubted, and did doubt, her capacity to give a valid refusal. This was based on her condition after a long labour, difficult delivery and major haemorrhage; the communications difficulties; the fact that the hospital thought she was alone in a foreign country, and there were no family members to whom they could turn for clarification of her religion and understanding of the situation; their concern that if she died her baby would have no next of kin; the fact that she had registered as a Roman Catholic.
"On the evidence available before the making of the ex parte application, the plaintiffs were objectively justified in doubting Ms K's capacity to refuse a blood transfusion."
Ms Justice Laffoy added that it was regrettable that the intervention of the court could have been obviated had she not misrepresented her religion at the outset.
Referring to the balancing of rights question between those of Ms K and her baby, she said that this would only arise in the event that the court found she had full capacity to refuse a blood transfusion. As it had not so found, this issue did not now arise for decision.
Considering the other issues raised, Ms Justice Laffoy said Ms K should have been informed of the ex parte application and had an opportunity to instruct a solicitor. However, this did not amount to a breach of her constitutional rights, though it did mean that process was fundamentally defective. "Even though the process which led to the ex parte order and the form of the order were flawed, in my view Ms K has not made out a case to have it set aside. Apart from that, as I have found, notwithstanding that the plaintiffs' application for the ex parte order, insofar as it was based on lack of capacity, was implicitly rejected by Abbott J, there was a basis in law and in fact on 21st September, 2006, for concluding that Ms K lacked capacity to give a valid refusal to accept a blood transfusion, so that an order could properly have been made authorising the hospital to transfuse Ms K on that ground.
"The fact that the ex parte order was made on a different ground, which should not have arisen, does not render the actions of the hospital personnel in transfusing Ms K unlawful."
The full text of this judgment is on www.courts.ie
Gerard Hogan SC, Eileen Barrington BL, instructed by A L Goodbody, for the plaintiffs; John Rogers SC, Simon Mills BL, instructed by Ferrys solicitors, for the defendant; David Barniville SC, James O'Callaghan BL, instructed by Chief State Solicitor, for the Attorney-General.