A.B. v C.D.

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 03 October 2016
• Neutral Citation: [2016] IEHC 541
• Court: High Court
• Docket Number: [2016 No. 7320P],[2016 No. 7320 P]
• Date: 03 October 2016

[2016] IEHC 541

THE HIGH COURT

Humphreys J.

[2016 No. 7320P]

BETWEEN

A.B.

PLAINTIFF

AND

C.D.

DEFENDANT

Medical – Treatment of a prisoner – In camera hearing – Right to refuse medical treatment – Human Rights – S. 45 of the Courts (Supplemental Provisions Act) 1961.

Facts: The plaintiff sought an interlocutory order authorizing the staff of the hospital to conduct all the necessary medical and surgical treatment to protect the life and bodily integrity of the defendant. The plaintiff had also filed an application for the matter to be heard in public. The plaintiff sought the use of sedation in treatment for the defendant/prisoner who was indulged in self harming and refusing to undergo treatment.

Mr. Justice Richard Humphreys ordered that in camera hearing to be refused as the identification of the plaintiff, the defendant and the hospital had been prohibited under s. 45 of the Courts (Supplemental Provisions Act) 1961. The Court however compelled the defendant to undergo treatment, as being a prisoner he could not refuse the treatment, put his life at risk by self harm or refusing to undergo treatment and frustrate the verdict of the Court.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of, October, 2016

1 The plaintiff is the Deputy Chief Executive Officer of Hospital X in which the defendant was placed, at the time of the application. The defendant is a convicted prisoner who is serving a life sentence for murder in Wheatfield Prison, but who was admitted to Hospital X on 8th August, 2016 as a result of a self-inflicted injury to his neck with a home-made weapon. The wound was not healing and the defendant refused to take prescribed medications and in addition exacerbated his injury by inflicting further wounds upon himself.

2 The position at the time the application was made to me was that the defendant, in the view of the hospital, required ‘ immediate and continuing intra-venous antibiotic administration to reduce the immediate possibility of sepsis in his present condition’. The hospital was of the view that because of what they considered to be his psychiatric condition, he was likely to become uncooperative and might well require sedation.

3 The defendant was awaiting a bed in the Central Mental Hospital. While in Hospital X he was assessed by a Senior Registrar in Psychiatry, whose report referred to the view of the forensic consultant psychiatrist attached to Wheatfield that the defendant had paranoid ideas of delusional intensity, very limited engagement by the defendant, and ‘ a likely schizophreniform psychosis’. The author of the report states her opinion (to which I will return) that the defendant is unwilling to accept that he has a serious injury and he ‘ lacked capacity to agree to the surgical procedure proposed by the ENT team’ as he does not understand the issue, does not believe the medical advice given and is unable to properly weigh up the risks to him and communicate his comprehension and view. While surgery is not currently required, the same would appear to apply to less invasive medical treatment.

4 Medical treatment was commenced, quite properly, by the hospital prior to court application, on the basis of the doctrine of necessity. The hospital now says that there is no specific legislation that permits the administration of medical treatment or surgery to the defendant other than by wardship or recourse to the inherent jurisdiction of the court, which it has invoked.

5 On 10th August, 2016, I heard from Mr. Donal McGuinness B.L., counsel for the plaintiff, as well as from Ms. Bernadette Parte, Solicitor, who I appointed as Guardian ad Litem for the defendant for the purposes of the application. Mr McGuinness' primary application was for an interlocutory order authorising the staff of Hospital X to administer all necessary medical and surgical treatment to protect the defendant's life and bodily integrity. On that date I made an order allowing the application and I now set out reasons for having done so.

Was the application one appropriate to be heard in camera?

6 Mr. McGuinness applied at the outset for the matter to be heard in camera, given what were described as ‘ security concerns’ for the hospital. Section 45 of the Courts (Supplemental Provisions) Act 1961 allows for what are described as lunacy matters to be heard otherwise than in public, but it does not follow that such matters must automatically be heard in camera. It appeared to me that an order restraining publication of the identities of the parties or the hospital concerned would sufficiently protect the rights of the parties and that the drastic step of an in camera hearing was not necessary. In any event the bald reference to security concerns was in my view too vague to properly ground an application for an in camera hearing. I therefore refused the application to be heard in camera but provided for reporting restrictions.

Should treatment be ordered on the basis of the evidence of mental incompetence in this application?

7 Where a patient lacks capacity, the court must act on his or her behalf in the patient's best interests. In the absence of special factors such as incurable and intolerable suffering, or the likelihood of a persistent vegetative state, those best interests generally militate in favour of receiving all treatment that is professionally recommended as prolonging life and indeed promoting the patient's medical welfare more widely.

8 Nonetheless, ordering medical treatment and especially surgical treatment contrary to the wishes of an adult patient impinges upon the bodily integrity of the individual, so in the case of a patient of full age and capacity, leaving aside for a moment the position of prisoners or any other special cases, it normally needs to be clear that the person does indeed lack such capacity. That was the opinion of the Senior Registrar who signed the opinion exhibited on behalf of the hospital. But what was that opinion based on? It appeared to have two elements, one being information and opinion received from the psychiatrist at Wheatfield, and the second being her own interview with the defendant. That first element is hearsay upon hearsay (given that Hospital X's risk manager, not the Registrar, swore the affidavit), and furthermore emanates from a separate institution than that represented before me. It is therefore of limited weight for present purposes. As regards the interview with the defendant, it seems to have related only to the surgery itself (reference is made to ‘ explanation around the procedure’, ‘ risks of not having the procedure and the possible benefits of having it’, ‘ any understanding of the specifics of the procedure’, ‘ fears… about surgery’). Only one question relates to anything else (‘ I asked Mr. D. about what happened in Wheatfield prison and he responded “there is something going on there” and refused to elaborate… He said the prison officers were beating [him] up.’) The report is silent as to how long this interview took but the account of it is brief, possibly because the author states that her team's role was (merely) to provide ‘ a second opinion for the ENT team’, who had already presumably formed their own view, although this is not deposed to.

9 The author of the report concedes that the defendant ‘ was somewhat cooperative with the interview’ and that ‘ [i]t was difficult to assess the full extent of his psychotic phenomena given limited engagement with the interview’. He was clearly dismissive of medical advice and denied the reality of his situation. However many individuals in society are in one degree or another of denial as to their health and medical position, and to one degree or another are unwilling or incapable of understanding the full medical ramifications of their situation. Does that of itself make them psychiatrically unwell? Probably not unless the concept of psychiatric illness is made unacceptably elastic. Where would such a doctrine end? With the totalitarian society, that uses the machinery of mental treatment against those who decline to submit to accepted truths.

10 And of course that is to assume that the defendant means what he says. Many people can affect an unwillingness to acknowledge or comprehend a problem in order to deflect having to deal with it, when what is really motivating them is not incapacity but simply a preference not to take the action under discussion. An obfuscatory response does not have to be taken at face value and might signal a wish not to be treated rather than mental illness. The author of the report does not seem to have taken the view that a more extensive history or assessment of the defendant's mental condition was required, armed as she was with the clear opinion from Wheatfield and the brief to produce only a second opinion for the ENT team. So there is no criticism of her at all. It does not appear from the report that she was told that the report was to be used for forensic purposes – if she had been so requested, one might have expected that brief to be acknowledged. There is no reference in the report to what the author thinks the defendant's mental illness actually is or to the methodology adopted to form the view on capacity, or to the degree of incapacity, or to how incapacity is assessed objectively. She does refer to ‘ paranoid thinking as above’ which I think is a reference to the allegation that prison officers were beating him up. But I am not sure that one could conclude, without more, that this allegation is such an appalling vista that it could only be the result of paranoia.

11 At the end of the day I would have to ask myself, if the defendant was not a prisoner, would I be happy to direct medical treatment for him based primarily on an interview that, while it appears to have fully done the job the author was set, does not appear to me to...