Appendix 1 - Cases

Key cases referred to in the text:

Fitzpatrick & Anor v K & Anor [2008] IEHC104

This High Court judgment, handed down by Miss Justice Laffoy, clarifies a medical practitioner’s responsibilities regarding informed consent and sets out the test of capacity that should be applied.

The case concerned Ms K, a young woman recently arrived in Ireland from the Democratic Republic of Congo, who suffered a major postpartum haemorrhage shortly after giving birth to a baby boy in the Coombe Women’s Hospital. It was only when the delivery team were preparing to give her an emergency blood transfusion that she told them (via her birth friend, who was acting as interpreter) that she was a Jehovah’s Witness and did not want to be transfused.

Due to communication difficulties, the patient’s exhausted state, and the fact that she had told the hospital that she was a Catholic when she booked in, her care team had doubts about the validity of her refusal to consent to the blood transfusion, without which she was likely to die. The hospital therefore applied for an emergency court order allowing them to transfuse the patient despite her refusal. This was granted, the blood transfusion was given and Ms K survived.

The subsequent court case was brought by the hospital, seeking a declaration that it was entitled to apply for the court order. Ms K brought a counterclaim, alleging (among other things) that, by overriding her refusal to consent to the blood transfusion, the hospital had committed assault. The judge found in favour of the hospital.

In a lengthy judgment, in which she considered a number of issues, the judge set out the following principles regarding the matter of consent:

• There is a presumption that an adult patient has the capacity, that is to say, the cognitive ability, to make a decision to refuse medical treatment, but that presumption can be rebutted.
• In determining whether a patient is deprived of capacity to make a decision to refuse medical treatment whether:
  • by reason of permanent cognitive impairment
  • temporary factors.
• The three-stage approach to the patient’s decision-making process adopted in the C case [The English case, Re C] is a helpful tool in applying that test. The patient’s cognitive ability will have been impaired to the extent that he or she is incapable of making the decision to refuse the proffered treatment if the patient
  • has not comprehended and retained the treatment information and, in particular, has not assimilated the information as to the consequences likely to ensue from not accepting the treatment
  • has not believed the treatment information and, in particular, if it is the case that not accepting the treatment is likely to result in the patient’s death, has not believed that outcome is likely
  • has not weighed the treatment information, in particular, the alternative choices and the likely outcomes, in the balance in arriving at the decision.
• The treatment information by reference to which the patient’s capacity is to be assessed is the information that the clinician is under a duty to impart – information as to what is the appropriate treatment, that is to say, what treatment is medically indicated, at the time of the decision and the risks and consequences likely to flow from the choices available to the patient in making the decision.
• In assessing capacity it is necessary to distinguish between misunderstanding or misperception of the treatment information in the decision-making process (which may sometimes be referred to colloquially as irrationality), on the one hand, and an irrational decision or a decision made for irrational reasons, on the other hand. The former may be evidence of lack of capacity. The latter is irrelevant to the assessment.
• In assessing capacity, whether at the bedside in a high dependency unit or in court, the assessment must have regard to the gravity of the decision, in terms of the consequences that are likely to ensue from the acceptance or rejection of the proffered treatment.

In an addendum to the judgment, the judge recommended that:

1. All maternity hospitals have guidelines in place for managing obstetric haemorrhage in women who refuse blood transfusion.
2. Women be routinely asked, when they book in, if they would accept a blood transfusion in an emergency.
3. The Medical Council publish guidelines on assessing a patient’s capacity to give a valid refusal to medical treatment and on the role of advance directives.

Re C [1994] 1 WLR 290

C was a 68-year-old man suffering from chronic paranoid schizophrenia and detained in a special hospital in England. He brought a case in the High Court, after the hospital had refused to give him assurances that it would not, at some time in the future, carry out a below-knee amputation to treat his gangrenous foot.

A vascular surgeon had estimated C’s chances of survival at 15% if he did not have an amputation, but C had refused the surgery and his foot was treated conservatively, with some success. However, on the grounds that C’s capacity was impaired by his mental illness, the hospital was unwilling to confirm that it would not carry out the amputation at some future date.

Despite the fact that C displayed grandiose delusions of being a world-renowned doctor, the court found that he was competent to decide this matter for himself because he had demonstrated:

(a) that he could understand and retain the treatment information
(b) believe it and
(c) weigh it in the balance to arrive at a choice.

Fitzpatrick v White [2007] IESC 51

Mr Fitzpatrick was admitted to the Royal Victoria Eye and Ear Hospital as a day case for surgery to correct a slight squint for cosmetic reasons. Unfortunately, although the procedure was performed proficiently, over the following months there was a gradual slippage in the medial rectus muscle behind Mr Fitzpatrick’s eye, which resulted in a worse squint and double vision.

He brought proceedings against the hospital, claiming negligence, and lost the case at trial. His appeal to the Supreme Court was confined to the claim that his consent to the operation was not valid because it had been obtained only 30 minutes beforehand.

Although the court did not uphold his appeal, on the grounds that there was “nothing in the evidence to suggest the plaintiff could not assimilate or properly understand what he was being told”, Mr Justice Kearns, in his summing up, gave this warning: “I would make the point strongly … that in other cases where a warning is given late in the day, particularly where the surgery is elective surgery, the outcome might well be different.” Expanding on this subject, he made the following comments:

“There are obvious reasons why, in the context of elective surgery, a warning given only shortly before an operation is undesirable. A patient may be stressed, medicated or in pain in this period and may be less likely for one or more of these reasons to make a calm and reasoned decision in such circumstances.

"…While I have noted the views of a number of the experts to the effect that this practice of warning day patients on the day of their operation had its advantages, it seems to me that the disadvantages were far greater, including the possibility of an embittered patient later asserting that he was too stressed or in too much pain to understand what was said or to make a free decision and that he was thus effectively deprived of any choice.”

Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL)

In 1980, the Department of Health and Social Security in England published a circular to reassure doctors that they would not be acting unlawfully in prescribing contraceptives to girls under 16 years old, as long as they were acting in good faith to protect patients against the harmful effects of sexual intercourse.

On learning this, Mrs Gillick sought an assurance from her local area health authority that her daughters would not be given advice or contraception without her consent. When this was refused, she challenged the legality of the guidance. This case went to the House of Lords for a final decision, which established that parents’ rights to consent on behalf of their children ends when the child is able fully to comprehend the proposed treatment. (See Box 6 for the guidelines derived from this case.)

In the Matter of a Ward of Court (withholding of medical treatment) [1996] 2 IR 73

The Ward of Court in this case was a 45-year-old woman. She had been in a near persistent vegetative state for 23 years and was being fed via a gastrostomy tube. Her mother, with the support of the rest of her family, applied to the High Court for permission to have the feeding tube removed and to allow life-threatening infections to take their course without antibiotic intervention. The High Court judge consented to this on behalf of the Ward, but the institution in which the Ward was living and the Attorney General appealed against the decision.

The Supreme Court considered the following issues, as set out by Justice Denham:

1. Whether withdrawing the feeding tube and the non-treatment of infections or other conditions, other than in a palliative way, was in the best interests of the Ward.
2. If so, would it be lawful?
3. Whether the court, in permitting such action, had failed in defending the Ward’s constitutional rights, including the right to life.
4. Whether the Ward would have the right to refuse such treatment if she was competent and, if she did have that right, did she lose it by virtue of her incapacity?
5. If she does retain the right to refuse treatment, can it be exercised on her behalf by someone else? If so, by whom?
6. What should be taken into account when such decisions are being made on her behalf?
7. Whether the High Court judge’s decision to support the family’s application was based on credible evidence that it was in the Ward’s best interests to withdraw artificial nourishment.

Four out of the five justices hearing the case upheld the High Court ruling. In their deliberations, they considered whether artificial nutrition and hydration constitutes medical intervention and whether its withdrawal would be in the Ward’s best interests. The four justices who upheld the decision concluded that tube feeding does amount to medical intervention because it is intrusive and that withdrawing such intervention would be in the Ward’s best interests. They took the view that withdrawing artificial means of sustenance would not be tantamount to terminating her life; it would be allowing nature to take its course. Justice Hamilton spelt it out in these terms:

“As the process of dying is part, and an ultimate, inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death and, unless the individual concerned so wishes, not to have life artificially maintained by the provision of nourishment by abnormal artificial means, which have no curative effect and which is intended merely to prolong life.

“This right, as so defined, does not include the right to have life terminated or death accelerated and is confined to the natural process of dying. No person has the right to terminate or to have terminated his or her life, or to accelerate or have accelerated his or her death.”

Northwestern Health Board v HW and CW [2001] 3 IR 622

In this case, the Supreme Court upheld a High Court decision not to allow the Northwestern Health Board to carry out a PKU test on an infant boy in opposition to his parents’ wishes.

In the original High Court case, the judge set out the issue as follows: “There is no doubt that medical opinion would emphatically state that it is in Paul’s best interest to have the PKU test done …The question I have to answer is whether this objective benefit to Paul overrides the rights of his parents, in effect, to decide that they do not want Paul to have the discomfort, and discomfort is as strong a word as could be used for it, of a pinprick in his heel, and are prepared to take the risk that he does not suffer from any of the relevant conditions.”

He concluded that: “If the State were entitled to intervene in every case where a professional opinion differed from that of parents, or where the State considered the parents were wrong in their decision, we would be rapidly stepping towards the Brave New World in which the State always knows best. In my view that situation would be totally at variance with both the spirit and word of the Constitution.” Four out of the five Supreme Court justices hearing the case upheld this view.

"The position was further clarified by the Hon Mrs Susan Justice Denham: “In seeking the balance to be achieved between the child’s rights within and to his family, and the family (as an institution) rights, and the parents’ right to exercise their responsibility for the child, and the child’s personal constitutional rights, the threshold will depend on the circumstances of the case.

"Thus, if the child’s life is in immediate danger (eg, needing an operation) then there is a heavy weight to be put on the child’s personal rights superseding family and parental considerations.”