Health Service Executive (HSE) v X (M)

JudgeMr. Justice John MacMenamin
Judgment Date29 July 2011
Neutral Citation[2011] IEHC 326
CourtHigh Court
Docket Number[2010 No. 11126 P]
Date29 July 2011

[2011] IEHC 326


[No. 11126 P/2010]
Health Service Executive (HSE) v X (M)





1. Protecting and vindicating the rights of vulnerable people suffering from mental incapacity poses challenges for legislators, courts, and especially the caring professions.


2. A person suffering from such incapacity continues to enjoy individual rights such as the exercise of freewill, self-determination, freedom of choice, dignity and autonomy (see In Re Ward of Court (withholding medical treatment) (No. 2) [1996] 2 I.R. 79). Speaking generally, the exercise of such rights by all citizens, whether in the private or public domain, is predicated upon, and informed by, clear understanding and cognition; an ability and make decisions in one's best interest having regard to the interests and rights of others. Where consent to particular forms of medical treatment, and the capacity to give that consent, arise, the issues of capacity and cognition are fundamental. In very exceptional cases, the nature of a patient's condition may entirely deprive them of the ability to give expression to any decision-making capacity. Such a situation arose in Re Ward of Court (No. 2).


3. But circumstances may also exist where, for example, the very nature of a mental illness clouds understanding, and where the task of decision-making for a patient becomes difficult. Then, where there is a want of capacity to make such decisions, psychiatrists have often found themselves in a position where it was they alone who were cast in the role of having to make choices in the patient's best interest, albeit, where possible, in consultation with colleagues and family members. Traditionally, in our law, the views of experts in the discipline have justifiably received great weight and respect. In this jurisdiction, we are fortunate that we can place a high degree of trust in our clinicians. This is based on both that tradition and modern day experience.


4. Internationally, however, abuses in psychiatry are not unknown; in some countries it has been used as a mechanism for state oppression of legitimate dissent. As in all disciplines, including the law, psychiatry is in a state of constant evolution where even consensus views of a quarter of a century ago might now be questioned.


5. Also, as in all disciplines, there is a possibility of honest error, for subjective opinion supervening over what should be accepted as established, objective diagnostic criteria, even on issues as vital as legal capacity. A finding of incapacity can have substantial legal and social consequences, and involves a serious curtailment of rights. This has led to diverse approaches. Some international bodies, such as both the Committees of Ministers of the Council of Europe and the United Nations, have sought to adopt universally applicable procedures, intended to ensure that the voice and views of a patient are not only heard but considered. The philosophy behind these international instruments is to ensure that guarantees of equality before the law are given effect (see Article 12 of the United Nations Convention on the Rights of People with Disabilities to which reference is made later in this judgment). In many countries these values have been given concrete form in the shape of legislation. In 2008 the Government of the day published the proposed heads of the Mental Capacity and Guardianship Bill 2008. This was criticised by health professionals. To date the Bill has not become law. Even a superficial consideration of the learned discussion on some of the issues leaves one with the sense that there exists a substantial gap in understanding between those who seek a "rights-based" approach, and others who lay emphasis upon the challenges in taking care of patients on a day-to-day basis (see (2008) 14. 1 Medico Legal Journal of Ireland 14). It is important to remember that it is doctors, not lawyers, who can cure patients.


6. But, on the other hand, denial or deprivation of procedures to a vulnerable person can have radical consequences, including a loss of many civil rights (see the decision of the European Convention on Human Rights ("the Convention") in Shtukaturov v. Russia, [2010] E.C.H.R. 292 for an apt illustration).


7. In Shtukaturov, the European Court of Human Rights ("ECtHR") had to deal with legal capacity and enforced hospitalisation and treatment without consent. The applicant had been diagnosed with schizophrenia, and had been deprived of his legal capacity in a decision made without his knowledge at the request of his mother who had become his legal guardian. He was legally prohibited from challenging the decision in the Russian courts, and was subsequently placed in a psychiatric hospital. The ECtHR held that "the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation". The court held that domestic legislation must provide for a "tailor made response". The court found that a highly abridged the decision-making process depriving him of his legal capacity constituted a disproportionate interference with his private life. In Winterwerp v. Netherlands [1979] 2 E.H.R.R. 387 the ECtHR ruled that the capacity to deal with one's property was a civil right and protected by the Convention. The right to fairness of procedures is also engaged.


8. This case deals with an intended procedure for the treatment of the defendant whom I will call M.X. As will be seen, many of the matters briefly touched on above arise for consideration in this sad case.


9. M.X. was born in 1962. She is currently an involuntary patient in the Central Mental Hospital ("C.M.H."). Pursuant to the provisions of the Mental Health Act 2001 ("the Act of 2001"), she was transferred there some four years ago suffering from serious psychiatric complaints which caused her to be a source of danger and risk, not only to herself, but also to others. It is necessary therefore to remember at all points that she is seriously ill.


10. M.X has a long and very complicated forensic history. Prior to her current admission to the C.M.H. in 2007 she was previously an in-patient there. In that year her detention was found to be unlawful. She was admitted to St. John of God's Hospital, but then transferred from there back to the C.M.H. on the 24 th May, 2007. There she remains, as what is termed a "civil" patient, i.e. a person neither prosecuted nor convicted of any criminal offence. She is not, therefore, subject to the procedures and safeguards outlined in the Criminal Law (Insanity) Act 2006.


11. The application which is brought in this case is as a result of the concerns felt by the doctors who are treating her. They have sought guidance from the court as to whether certain forms of medical procedure which they deem necessary to ameliorate their patient's disorder can be lawfully administered. It is important to emphasise therefore that the treating doctors in this case have the welfare of their patient as their primary concern. Thus, what is sought in this case is, essentially, guidance as to statutory interpretation and application.

The Primary Diagnosis

12. The defendant's primary diagnosis is that she suffers from paranoid schizophrenia and a borderline personality disorder. This condition is particularly severe. It is associated with the risk of extreme violence to others, including children. At the time an interim application was originally brought in December, 2010 she was very unwell and it was thought that a number of months would elapse before her recovery.

The Problems Arising from the Intended Treatment Regime

13. In the latter half of 2010, the doctors originally began to encounter difficulties in treatment. They were administering a number of drugs to counteract the defendant's psychiatric condition. As part of this, it was necessary, for reasons which will be explained, to obtain blood samples. M.X objected to this. However, she was found by the doctors not to have the capacity to make decisions regarding her own welfare. Through her lawyers she has indicated that she does not consent to this course of treatment, and has made her position clear to those advising her.


14. The medical position is further complicated by a potential life-threatening adverse reaction. This is what is termed the unpredictable idiosyncratic destruction of the defendant's white blood cells which occurred in response to three different antipsychotic drugs which were administered to her. This reaction is known as an "agranular oxytosis reaction". A decline in white blood cell count can have a potentially fatal outcome where, ultimately, a patient may succumb to infection.

The Interlocutory Applications

15. Because of these concerns, in December, 2010, an interim application was made to this Court to permit the administration of a drug regime which necessitated the taking of blood samples as an ancillary to that regime. Interlocutory applications followed, and ultimately the case proceeded to full hearing. On an interim and interlocutory basis this court granted permission for the administration of the treatment and the taking of blood samples, but only in circumstances where there was an entirely independent verification by an independent psychiatrist, Dr. Ian Bownes, who works outside the jurisdiction. This was done so as to verify that the medical regime was for the patient's benefit. It should, in no sense, be seen as any reflection on the treating doctors. Dr. Bownes was identified by the defendant's legal advisors, and thus there was no question as to his independence. He indicated that the course...

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1 books & journal articles

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