Governor of A Prison v X.Y.

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 22 June 2023
• Neutral Citation: [2023] IEHC 361
• Court: High Court
• Docket Number: [2023 No. 2193 P.]

Between

Governor of A Prison

Plaintiff

and

X.Y.

Defendant

[2023] IEHC 361

[2023 No. 2193 P.]

THE HIGH COURT

Advance healthcare directives – Medical intervention – Capacity – Plaintiff seeking to give effect to the defendant’s advance healthcare directive – Whether the defendant had capacity

Facts: The defendant, a prisoner in a prison outside Dublin, was serving a custodial sentence following a conviction in 2022. In early May 2023, the prisoner began to refuse to consume food or fluids. The stated intention of the prisoner was to end his or her life. The prisoner executed two advance healthcare directives. The first was executed on 12th May 2023 and the second on 13th May, 2023 (the AHD). In the AHD, the prisoner made clear: (i) his or her wishes (a) not to receive any medical intervention and medication, and (b) if actively dying, a preference to do so in a clinical setting, such as a hospital or hospice; (ii) that those wishes were to be respected, should the prisoner become incapacitated or unconscious; and (iii) that the AHD was to apply to life sustaining treatment and even if the prisoner’s life was at risk. At the time of the making of the AHD, and at the time of the hearing, the prisoner had and continued to have full capacity. The plaintiff, the Governor of the prison, commenced proceedings on 15th May 2023, seeking orders essentially to give effect to the prisoner’s wishes and permitting the Governor not to feed or provide fluid to the prisoner against his or her wishes, not to force-feed the prisoner or to provide any medical intervention to the prisoner against his or her wishes and to give effect to the prisoner’s AHD in accordance with the provisions of Part 8 of the Assisted Decision-Making (Capacity) Act 2015.

The High Court (Barniville P) made the following declarations: (i) a declaration pursuant to the inherent jurisdiction of the court that the prisoner had capacity to make a decision to refuse food and fluids and further that the prisoner had the capacity to refuse all forms of medical intervention should the necessity for such intervention arise; (ii) a declaration pursuant to the inherent jurisdiction of the court that the Governor’s decision not to feed the prisoner against his or her wishes, namely, not to force-feed the prisoner or to provide any medical intervention, for so long as the prisoner has capacity, is lawful; (iii) a declaration pursuant to the inherent jurisdiction of the court that for so long as the prisoner has capacity, the Governor is entitled to give effect to the prisoner’s wishes not to be fed or to receive fluids or to receive any medical intervention against his or her wishes; (iv) a declaration that pursuant to s. 89(2) of the 2015 Act, the prisoner’s AHD is valid; (v) a declaration pursuant to the inherent jurisdiction of the court that the Governor is entitled to give effect to the prisoner’s AHD insofar as same is applicable to the matter set out in that directive; (vi) a declaration pursuant to the inherent jurisdiction of the court that the prisoner’s decision to refuse food and fluids and to refuse medical intervention in the event that the prisoner loses capacity or becomes unconscious, as expressed in the prisoner’s AHD should remain operative in the event that the prisoner becomes incapable of making a decision to accept food or fluids or medical treatment; and (vii) a declaration pursuant to the inherent jurisdiction of the court that the Governor’s decision not to feed the prisoner against his or her wishes, namely, not to force-feed the prisoner or to provide any medical intervention, in the event that the prisoner becomes incapacitated or unconscious, is lawful.

Barniville P made an order that the prisoner could be transferred to a hospital or other clinical facility if that was required for end of life of treatment, while continuing to adhere to the prisoner’s AHD and the wishes of the prisoner regarding food and fluids refusal and medical intervention. Barniville P gave liberty to apply at short notice in the event that there was any issue about the transfer of the prisoner to a hospital or other clinical facility in accordance with the wishes expressed by the prisoner in the AHD. Barniville P also made an order on consent that the Governor pay the prisoner’s costs of the proceedings and gave liberty to apply.

Relief granted.

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 22 ^nd June, 2023

Index

1. Introduction	2
2. Brief Overview of Proceedings and Decision	2
3. The Evidence	7
a. The Governor's Evidence	7
b. The NMM's Evidence	10
c. The CMO's Evidence	13
d. The Consultant Psychiatrist's Evidence	14
e. Other Evidence	15
4. Findings and Assessment of Evidence	16
5. Application of Relevant Legal Principles and Statutory Provisions	16
a. The Prison Rules	17
b. The Inherent Jurisdiction of the Court	17
c. Assisted Decision-Making (Capacity) Act 2015	25
6. Conclusions	30

1. Introduction

1 . This judgment concerns an issue which has come before the courts on a number of previous occasions. The issue is: what are the prison authorities supposed to do when a prisoner, with full capacity, decides to cease taking food and fluids in the full knowledge that, if the prisoner persists in that decision, he or she will inevitably die. Such a choice by a prisoner presents the prison authorities, and those responsible for the treatment and care of the prisoner, with a difficult dilemma. Their natural instinct is, understandably, to seek to intervene to try and keep the prisoner alive. However, what if the prisoner has made clear that he or she does not want any such intervention and does not consent to it?

2 . These issues arise in the present case and have been considered before the Irish Courts. However, another issue which presents itself in the case has not been previously considered. What happens if the prisoner, acting with full capacity, has made an advance healthcare directive, thereby bringing into play the provisions of Part 8 of the Assisted Decision-Making (Capacity) Act 2015 (as amended) (the “2015 Act”)? Those provisions came into operation on 26 ^th April 2023, a couple of weeks before these proceedings were commenced on 15 ^th May 2023. No court has had, as of yet, the opportunity to consider the relevant provisions of Part 8 of the 2015 Act and that is what is new and different about this case.

2. Brief Overview of Proceedings and Decision

3 . The case concerns a prisoner in a prison outside Dublin. The prisoner is serving a custodial sentence following a conviction in 2022. In early May 2023, the prisoner began to refuse to consume food or fluids. The prisoner had similarly refused food and fluids for brief periods on four or five previous occasions between December 2022 and April 2023. From 5 ^th May 2023 onwards, the prisoner made numerous statements to the prison authorities that he or she (the gender of the prisoner is not disclosed in this judgment for reasons explained below) did not wish to consume any food or fluids. This time, apart from a few occasions on which the prisoner took some fluids, the prisoner maintained his or her refusal to consume food or fluids up to the date of the hearing of the proceedings on 18 ^th May 2023. The stated intention of the prisoner was to end his or her life.

4 . During the course of an assessment of the prisoner on 7 ^th May 2023, the prisoner dictated a note stating that he or she intended to end his or her life by refusing food and fluids.

5 . The prisoner executed two advance healthcare directives. The first was executed on 12 ^th May 2023 and the second on 13 ^th May, 2023. The applicable directive is the latter one which I will refer to in this judgment as the “AHD”. In the AHD, the prisoner made clear:

(i) his or her wishes:

(a) not to receive any medical intervention and medication, and

(b) if actively dying, a preference to do so in a clinical setting, such as a hospital or hospice.

(ii) That those wishes were to be respected, should the prisoner become incapacitated or unconscious; and

(iii) That the AHD was to apply to life sustaining treatment and even if the prisoner's life was at risk.

6 . At the time of the making of the AHD, and at the time of the hearing, the prisoner had and continues to have full capacity. That has been confirmed in evidence by the prison's Chief Medical Office (the “CMO”), by the National Nurse Manager of the Irish Prison Service (the “NNM”) and by an independent consultant psychiatrist who examined the prisoner and gave evidence to the court at the hearing on 18 ^th May 2023.

7 . The Governor of the prison commenced these proceedings on 15 ^th May 2023, seeking orders essentially to give effect to the prisoner's wishes and permitting the Governor not to feed or provide fluid to the prisoner against his or her wishes, not to force-feed the prisoner or to provide any medical intervention to the prisoner against his or her wishes and to give effect to the prisoner's AHD in accordance with the provisions of Part 8 of the 2015 Act. A range of different orders were sought by the Governor in the proceedings.

8 . An ex parte application was made to me on behalf of the Governor on 15 ^th May 2023, seeking the court's consent to the making of the application for orders under Part 8 of the 2015 Act and for directions as to the service of the proceedings on the prisoner's solicitors, as well as various other directions.

9 . At the commencement of that application, the Governor made an application for the proceedings to be heard in camera, pursuant to s. 92(7) of the 2015 Act and pursuant to the inherent jurisdiction of the court (as described by the Supreme Court in Gilchrist v Sunday Newspapers Ltd [2017] IESC 18, [2017]...