Health Service Executive v “X” (a person of unsound mind not so found) [1]

Mr Justice MacMenamin in his judgement dated 26 July 2011, held that the taking of blood samples by doctors treating a woman suffering from severe mental illness was lawful, despite her failure to give consent.

In 2007, X (the “Defendant”) was diagnosed as suffering from paranoid schizophrenia and a borderline personality disorder, conditions associated with extreme violence.  As the Defendant was considered a danger to herself and others, she was admitted to the Central Mental Hospital in 2007 as a civil patient, under the Mental Health Act 2001 (the “Act”).  In order to ameliorate her condition, doctors administered a drug regime which was known to cause a potential life threatening adverse reaction, the unpredictable idiosyncratic destruction of the Defendant’s white blood cells. In order to prevent this, the woman’s blood had to be monitored by the taking of regular blood tests. The Defendant objected and restraints were required when blood was being taken. The treating doctors, who believed that the Defendant did not have the capacity to make decisions regarding her own welfare, brought this case to the Court, seeking guidance on the legality of necessary treatment.

In December 2010, the Court granted permission on an interim basis for the administration of the drug regime and the taking of blood, in circumstances where it was verified by an independent Psychiatrist, that the treatment was for the patient’s benefit.

At the full Hearing the Court considered the issues in the context of the Constitution and the European Convention on Human Rights, (the “Convention”).  Dr Kennedy of the Central Mental Hospital, drew attention to the fact that while the Act permits treatment without consent, there is a possibility, it may not permit the drawing of a blood sample, without consent. This is because the definition of the term “treatment”, contained in the Act allows for the administration of remedies intended for the purpose of counter acting a mental disorder. The question arises as to whether the health professionals have the legal power or authority under the Act to actually restrain a patient to draw blood, a procedure ancillary to the necessary treatment.

Counsel for the Defendant stated that “treatment” should be interpreted strictly, due to the serious implications treatment without consent may have on fundamental rights and interest.  It was argued that a broad interpretation could lead to an endless series of tests involving restraint, without patient consent, raising the question of inhuman and degrading treatment, contrary to the Constitution and the Convention.

The Judge found that the purpose of the Act was to protect the right to life and health and such rights had to take precedence. As evidence showed that the taking of blood was in the Defendant’s best interest, it found that a broad interpretation of “treatment” should be adopted, to include ancillary procedures, such as the taking of blood samples.

Counsel for the Defendant also raised the point that the Act failed to safeguard her rights adequately, as it failed to provide for an independent tribunal to determine whether she lacked the capacity to consent to treatment and whether the treatment was appropriate.  Further, it was argued that the Act failed to designate an independent person to represent a patient where issues of consent arise.  However, he failed to challenge the constitutionality of the Act or seek a declaration of incompatibility with the Convention.   Mr Justice MacMenamin provided that these matters should be fully and properly pleaded, before a Court could make a decision in this regard.  Further, that the Attorney General and Irish Human Rights Commission should be given an opportunity to appear in the proceedings.