A HIGH Court action concerning what limits apply to the treatment doctors may administer to a psychiatrically ill woman, has highlighted the absence of safeguards here for adults deemed to lack capacity to make decisions about their medical treatment.
The issues raised in the woman’s case are very important with implications for adults with mental illness, disabled persons and residents of nursing homes, Mr Justice John MacMenamin noted yesterday when reserving judgment on the action.
Lawyers for the woman claim the Mental Health Act 2001 fails to provide for an adequate independent review of the administration of treatment to patients who lack capacity to consent to such treatment and, in those circumstances, the meaning of “treatment” should be narrowly construed.
The judge was told, while the heads of a Mental Capacity Bill was drafted some years ago, legislation providing safeguards for adults deemed not to have capacity to make decisions concerning their medical treatment has not been enacted.
The woman’s action is an important test case involving 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.
The case raises issues about what limits apply to the entitlement of doctors to follow their clinical judgment when treating such persons. In the absence of statutory safeguards for those persons, the judge has to decide how their rights to personal liberty, bodily integrity and human dignity are to be vindicated.
The Health Service Executive (HSE) has applied to the court for declarations it is legally entitled to continue to administer certain treatment to the woman, who has schizophrenia and is being detained against her will.
The woman is being treated with a drug which has had the adverse and potentially life-threatening side effect of lowering her white blood cell count. In order to monitor her white blood cell count, regular blood samples are being taken from her with a syringe. The woman has resisted this treatment and her resistance has led to her being physically restrained and sedated on occasions so the treatment can be administered.
Felix McEnroy SC, for the HSE, argued it is entitled under the provisions of the 2001 Act to administer the treatment and submitted the taking of blood samples is a necessary part of her overall treatment for her mental illness.
In such situations, the welfare of the person has to be the paramount concern, counsel said. Vindication of their right to liberty could not be at the cost of their personal welfare.
Counsel agreed with the judge that there is a difficulty about what is understood by the term “welfare”. The judge said it could be used “to justify almost anything”.
Mr McEnroy said the balance of rights related to the particular circumstances of each case and also argued there would be a “catastrophic effect” on mental health and other services if the courts had to regulate clinical decisions.
Tim O’Leary SC, for the woman, argued the meaning of “treatment” in the 2001 Act should be narrowly construed given the absence of safeguards for persons in the position of the woman.
If the HSE secured the orders sought, it would allow for open-ended treatment and a potentially endless series of invasive medical procedures, it was submitted.
The interpretation of treatment under the Act should not be extended to procedures to address the white blood cell count issue when that problem was neither a symptom nor physical consequence of her mental disorder but was rather a consequence of the hospital’s decision to administer a drug.
In this case, the core treatment for the mental disorder was the administration of the drug, he said. The taking of blood samples, restraint and possible sedation of the woman was not a symptom or consequence of her mental disorder but a consequence of the decision by the hospital to administer a particular drug and did not constitute “treatment” within the meaning of the 2001 Act and violated her rights.
In submissions on the woman’s behalf, it was also stated the inspector of Mental Health Services has been critical of the regime applying to the woman, particularly the seclusion of her.
