Irish High Court ruling on treatment for mental health patients incapable of consent; submissions on Ireland’s Mental Health Capacity legislation

Irish High Court ruling

In The Health Service Executive v. M.X. (a person of unsound mind not so found) represented by her solicitor [2010] No.1126 P, the Irish High Court has held that the definition of "treatment" in Irish legislation includes the administering of ancillary treatment such as the taking of blood tests from patients deemed incapable of giving consent, where such ancillary treatment is necessary "to restore the patients' health and to alleviate [her] condition".

The case was brought by doctors administering the patient's treatment who sought guidance from the Court as to the lawfulness of administering ancillary treatment to the patient. It concerned an involuntary patient who suffered from paranoid schizophrenia and a borderline personality disorder. As part of her treatment, regular blood tests were required to monitor her white cell count to prevent adverse reaction to the treatment, which could prove fatal. The patient objected to the blood tests and had to be restrained during this process. An independent psychiatrist, appointed by legal representatives for the patient, found that the course of treatment was appropriate and in the patient's welfare.

In the course of his judgment, MacMenamin J noted "a gap in understanding between those who seek a 'rights-based' approach and others who lay emphasis on the the challenges of taking care of patients on a day-to-day basis".

He concluded that "the Court in its interpretation of the Act, and in the assessment of the defendant's best interest, should allow for a medical procedure which albeit invasive, is ancillary to, and part of the procedures necessary to remedy and ameliorate her mental illness or its consequences. Clearly 'treatment' could not include measures or procedures which are entirely unrelated to a patient's mental health".

Counsel for the patient also argued that the legislation did not protect her rights under the Irish Constitution and the European Convention on Human Rights, as it failed to provide for an independent arbitrator as to a patient's capacity. However MacMenamin J noted that neither a declaration of Constitutional invalidity nor a declaration of incompatibility with the ECHR had been sought. Accordingly, he granted the parties time to consider his judgment and whether the Irish Human Rights Commission and/or Attorney General, should be invited to participate.

Submissions on proposed Mental Health Capacity legislation

Meanwhile, various submissions have been made on the scheme of Ireland's Mental Capacity Bill 2008:

• The Mental Health Reform group - a national coalition promoting improved mental health services in the State - have recommended that capacity legislation should provide for "supported decision-making", to enable persons lacking capacity to participate in decision making to the fullest extent possible. They have also recommended that the term "voluntary patient" in Irish mental health legislation be amended so as to refer to persons who have the capacity to consent to their admission and treatment. Click here to view Mental Health Reform's submission.
• Amnesty International's submission recommends that the Bill's objective should be to enhance the individual's capacity so as to enable them to make decisions affecting their lives. They propose that the Bill provide for an "independent capacity advocacy service" and "capacity advocates", to guarantee that individuals receive the support they need to enhance their decision-making capacity. As regards the administration of medication, they suggest that where a person regains capacity at any time, the programme of medication should cease until the person gives their free and informed consent to receive the medication. Click here to view the Amnesty submission. Click here to support Amnesty's capacity legislation campaign.
• The Centre for Disability Law and Policy (CDLP) at NUI Galway notes that in relation to legal capacity, there has been an international shift towards a support-based system which allows disabled persons to make their own decisions. They also highlight that the Bill does not contain a provision allowing the individual to have future wishes legally enforced in the event of a future lack of capacity. Their submission states that current Irish law on legal capacity may be subject to challenge at the European Court of Human Rights. Click here to view the CDLP's submission. Click here to view a piece by Human Rights in Ireland on this submission.

It is noteworthy that all three submissions highlight shortcomings in the Bill as to its compliance with the international treaty, the Convention on the Rights of Persons with Disabilities. Ireland has signed but not ratified this Convention.