Health Service Executive (HSE) v M (J) & P (R)

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 16 January 2013
• Neutral Citation: [2013] IEHC 12
• Court: High Court
• Docket Number: [2012 No. 11101 P]
• Date: 16 January 2013

Health Service Executive (HSE) v M (J) & P (R)

IN THE MATTER OF ARTICLE 40.3

AND

ARTICLE 41 OF THE CONSTITUTION

AND

IN THE MATTER OF SECTION 25 OF THE MENTAL HEALTH ACT, 2001,

IN THE MATTER OF X.Y. A MINOR

BETWEEN

THE HEALTH SERVICE EXECUTIVE

PLAINTIFF

AND

J.M. AND R.P.

DEFENDANTS

[2013] IEHC 12

[No. 11101]P/2012

THE HIGH COURT

MENTAL HEALTH

Consent

Child - Blood test - Consent - Capacity to refuse consent - Interference with autonomy and bodily integrity - Suicidal patient - Ancillary to treatment - Consent from children - Parental support - Statutory interpretation - Purposive approach - Whether suicidal child having capacity to refuse consent - Whether treatment encompassing taking of blood samples - Whether taking blood sample without consent proportionate - Health Service Executive v MX [2011] IEHC 326, [2012] 1 IR 81 approved - Gillick v West Norfolk AHA [1986] AC 112; Gooden v St. Otteran's Hospital (2001) [2005] 3 IR 617; EH v Clinical Director of St. Vincent's Hospital [2009] IESC 46, [2009] 3 IR 774; North Western Health Board v HW [2001] 3 IR 622; In re R (A Minor) (Wardship: Consent to Treatment) [1991] 3 WLR 592; In re a Ward of Court (withholding medical treatment) (No 2) [1996] 2 IR 79 and MX v Health Service Executive [2012] IEHC 491, [2012] 3 IR 254 considered - Mental Health Act 2001 (No 25), ss 2, 4, 14, 25, 56, 57, 60, 61 and 69 - Taking of blood sample permitted (2012/11101P - Birmingham J - 16/1/2013) [2013] IEHC 12

Health Service Executive v M(J)

Facts: The applicant X.Y. had been diagnosed as having bipolar affective disorder and had been detained pursuant to the Mental Health Act 2001. She had previously made suicide attempts. An application was made to obtain a single blood test from her. It was resisted on the basis that it amounted to an interference with her autonomy. The question arose as to whether she had capacity to refuse the treatment.

Held by Birmingham J. that the Court was satisfied that the X.Y"s best interests were served by permitting the taking of the blood sample. Her parents supported the treatment. The taking of a blood sample was clearly designed to protect her life and well-being. She was a serious suicide risk. A distinction could be drawn between consent to medical treatment that was proposed and capacity to refuse medical treatment. The taking of a blood sample was clearly ancillary to prescribing and administering medication. She was a serious suicide risk and lacked capacity to refuse consent to the taking of blood samples.

MENTAL HEALTH ACT 2001 S25

MENTAL HEALTH ACT 2001 S2

MENTAL HEALTH ACT 2001 S4

MENTAL HEALTH ACT 2001 S2(1)

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S69(4)

GOODEN v ST OTTERAN'S HOSPITAL 2005 3 IR 617

H (E) v CLINICAL DIRECTOR OF ST VINCENT'S HOSPITAL 2009 3 IR 744

MENTAL HEALTH ACT 2001 S4(3)

HEALTH SERVICE EXECUTIVE (HSE) v X (M) UNREP MACMENAMIN 29.7.2011 2011/25/6515 2011 IEHC 326

MENTAL HEALTH ACT 2001 S56

MENTAL HEALTH ACT 2001 S57

MENTAL HEALTH ACT 2001 S60

MENTAL HEALTH ACT 2001 S61

WARD OF COURT (NO.2), IN RE 1996 2 IR 79

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S23

NORTHWESTERN HEALTH BOARD v W (H) & W (C) 2001 3 IR 62

GILLICK v WEST NORFOLK & WISBECH AREA HEALTH AUTHORITY 1986 AC 112

R (A MINOR), IN RE 1991 4 AER 177

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13

X (M)[APUM] v HEALTH SERVICE EXECUTIVE & ORS 2013 1 ILRM 322

1 JUDGMENT of Mr. Justice Birminghamdelivered the 16th day of January, 2013

2 1. These proceedings were commenced by plenary summons dated the 5 November 2012, and a notice of motion dated the same day. Also, on that day the matter was mentioned on an ex-parte basis in court at which stage a solicitor was appointed to represent X.Y. The solicitor chosen was appointed because of her involvement in another case which appeared to be potentially highly relevant and her expertise in this area. While the appointment was originally made as a guardian ad litem, in fact what has subsequently transpired is that the legal team that has represented X.Y. has acted not so much as guardian ad litem, in that the team members have not expressed any views of their own on what is in the best interest ofX.Y., but rather they have acted as a legitimus contradictor and communicated her views to the court. While what is now before the Court is in form an interlocutory application, in certain circumstances it has the capacity to dispose of the issue.

3 2. The background facts by way of summary are that X. Y. is fifteen years of age and will be sixteen at the end of January. X.Y. has been diagnosed as experiencing a bipolar affective disorder. On the 15 ^th October 2012, she was detained in the CAMHS (Child and Adolescent Mental Health Team) Inpatient Unit, Merlin Park Hospital, Galway pursuant to s. 25 of the Mental Health Act, 2001 (hereinafter "the Act of 2001"). On the 31 ^st October, 2012, that order was extended by the District Court for a further period of three months. It is important to state that the order of the District Court providing for her detention and the subsequent order extending that detention for a further period of three months have never been challenged. It is also appropriate to note that X.Y. was not separately represented in the s.25 proceedings.

4 3. It is also important to appreciate by way of background that the latest admission to hospital follows on from earlier admissions to this and other mental health facilities between September and December 2011, and between March and June 2012. It is particularly noteworthy that in July 2012, X.Y. was admitted to Merlin Park Hospital from an adult psychiatric unit, following a suicide attempt. Between the date of her admission to Merlin Park on 3 ^rd July and the 15 ^th October, the date of the District Court order, X.Y. made several attempts to take her own life.

5 4. X.Y. was prescribed olanzapine, which is a mood stabilising medication. On occasions, indeed on the majority of occasions it appears, it has been found necessary to administer the medication intramuscularly with the use of physical restraint as she refuses to consent to the taking of the medication orally. Since mid-November X.Y. has been taking her prescribed medication orally. However, she has made it clear toher legal team that she does this only because she knew that the alternative was that the medication would be forcibly administered. X.Y. then began to withhold passing urine, in what was believed to be an attempt to cause herself physical harm. Following this she presented with a low grade temperature and was complaining of abdominal pain. In those circumstances the medical authorities were anxious to obtain a blood sample from X.Y. for the purpose of having it analysed. There were two reasons for this. First of all, the taking of a blood sample was appropriate and would constitute best practice, in order to identify the source of her physical complaints and symptoms. Secondly, it is regarded as important and is regarded as best practice to monitor the blood of a person who is being prescribed olanzapine. The practice of monitoring the bloods of a patient who is being treated with olanzapine is in order to guard against possible side effects. The administration of anti-psychotic medication gives rise to a risk of developing a serious physical disorder known as neuroleptic malignant syndrome. Olanzapine is known to be associated with a possible risk of developing diabetes, which risk is higher in young people and accordingly it is regarded as appropriate to carry out blood investigations for the purpose of testing glucose levels and the lipid profile, including cholesterol.

6 5. The plenary summons as issued had made reference to a wide range of orders that were being sought. A number of these were being sought on a provisional or precautionary basis. For example, there was reference to orders being sought permitting the Health Service Executive (hereinafter "the HSE") to commence antibiotic chemotherapy and for this to be administered intravenously, with authorisation to the HSE to use all reasonable and necessary methods to restrain and contain X.Y. in order to facilitate the intravenous administration of the antibiotic medication, if the results of blood tests were suggestive of an infection and thecommencement of antibiotic chemotherapy was deemed to be in her best interests and welfare by her treating physician. Other orders referred to included granting liberty to the HSE to perform catheterisation of X.Y. in the event of a refusal to provide a urine sample. However, the application subsequently moved was put on a much more restricted basis and what is sought now is simply a single blood test. Reference has also been made to the necessity to carry out an electro-cardiogram (ECG), or alternatively an x-ray or ultrasound. That particular issue has not received major attention during the hearing and I will need clarification of what is proposed. While what is now sought is less radical than what had been referred to initially, it is nonetheless the case that the taking of a blood sample is an invasive procedure. If resisted by the patient so that physical restraint is required, it is a very significant interference with the autonomy and bodily integrity of the patient.

7 6. This is perhaps the point at which to say that when the legal team was appointed to represent X.Y. it decided to consult and obtain reports from a consultant forensic child and adolescent psychiatrist, Dr. Yolande Devine from outside the jurisdiction and from Dr. Louise Sharkey, a consultant child and adolescent psychiatrist at Mater CAMHS. The report from Dr. Sharkey was based on an interview with X.Y. as well as on her...