High Court of Ireland Decisions

Judgment Title: Fitzpatrick & Anor -v- K. & Anor

Neutral Citation: [2008] IEHC 104


High Court Record Number: 2006 4427 P

Date of Delivery: 25 April 2008

Court: High Court

“It is ordered that the Plaintiff be authorised to administer to the Defendant including all appropriate steps by way of restraint or otherwise all appropriate medical treatment and other ancillary procedures including blood transfusion and clotting agents.”

“Medical treatment may not be given to an adult person of full capacity without his or her consent. There are a few rare exceptions to this e.g. in regard to contagious diseases or in a medical emergency where the patient is unable to communicate. This right arises out of civil, criminal and constitutional law. If medical treatment is given without consent it may be a trespass against the person in civil law, a battery in criminal law, and a breach of the individual’s constitutional rights. The consent which is given by an adult of full capacity is a matter of choice. It is not necessarily a decision based on medical considerations. Thus, medical treatment may be refused for other than medical reasons, or reasons most citizens would regard as rational, but the person of full age and capacity may make the decision for their own reasons.
If the patient is a minor the consent may be given on their behalf by parents or guardians. If the patient is incapacitated by reason other than age, then the issue of capacity to consent arises. In this instance, where the patient is a ward of court, the court makes the decision.”

“The right to life is the pre-eminent personal right. The State has guaranteed in its laws to respect this right. The respect is absolute. This right refers to all lives – all lives are respected for the benefit of the individual and for the common good. The State’s respect for the life of the individual encompasses the right of the individual to, for example, refuse a blood transfusion for religious reasons. In the recognition of the individual’s autonomy, life is respected.”

“The patient manifestly made the decision on the basis of her religious convictions. It is not for the doctor to second-guess the reasonableness of the decision or to pass judgment on the religious principles which motivated it. The fact that he had no opportunity to offer medical advice cannot nullify instructions plainly intended to govern in circumstances where such advice is not possible. Unless the doctor had reason to believe that the instructions in the Jehovah’s Witness card were not valid instructions in the sense that they did not truly represent the patient’s wishes, in my opinion he was obliged to honour them. He had no authorisation under the emergency doctrine to override the patient’s wishes. In my opinion, she was entitled to reject in advance of an emergency a medical procedure inimical to her religious values.”

“In short, the card on its face set forth unqualified instructions applicable to the circumstances presented by this emergency. In the absence of any evidence to the contrary, those instructions should be taken as validly representing the patient’s wishes not to be transfused. If, of course, there were evidence to the contrary – evidence which cast doubt on whether the card was a true expression of the patient’s wishes – the doctor, in my opinion, would be entitled to proceed as he would in the usual emergency case.

“In essence Ward J. found that the physical and mental state of Miss T on the Sunday afternoon and evening were such that, although she was undoubtedly under the influence of her mother, she was capable of reaching and did reach a decision as to her own treatment. However, he went on to find that Miss T was lulled into a sense of false security by hospital staff and that she was misinformed as to the availability and effectiveness of alternative procedures. Against this background and his assessment of the shallowness of Miss T’s acceptance of the beliefs of the Jehovah’s Witnesses, he construed Miss T’s refusal of treatment by blood transfusion as not extending to the question of whether or not she would receive transfusions in the extreme situation which had arisen. In other words he concluded that, as to that, Miss T had neither consented nor refused. As Miss T was no longer able to express any view, it was a classic ‘emergency’ situation in which it was lawful for the doctors to treat her in whatever way they considered, in the exercise of their clinical judgment, to be in her best interests.”

“(2) An adult patient may be deprived of his capacity to decide either by long-term mental incapacity or retarded development or by temporary factors such as unconsciousness or confusion or the effects of fatigue, shock, pain or drugs.
(3) If an adult patient did not have capacity to decide at the time of the purported refusal and still does not have that capacity, it is the duty of the doctors to treat him in whatever way they consider, in exercise of their clinical judgment, to be in his best interests.
(4) Doctors faced with the refusal of consent have to give very careful and detailed consideration to what was the patient’s capacity to decide at the time when the decision was made. It may not be a case of capacity or no capacity. It may be a case of reduced capacity. What matters is whether at that time the patient’s capacity was reduced below the level needed in the case of a refusal of that importance, for refusals can vary in importance. Some may involve a risk to life or of irreparable damage to health. Others may not.
(5) In some cases doctors will not only have to consider the capacity of the patient to refuse treatment but also whether the refusal has been vitiated because it resulted not from the patient’s will, but from the will of others …
(6) In all cases doctors will need to consider the true scope and basis of the refusal. Was it intended to apply in the circumstances which have arisen? Was it based upon assumptions which in the event have not been realised? A refusal is only effective within its true scope and is vitiated if it is based upon false assumptions.
(7) …
(8) In cases of doubt as to the effect of a purported refusal of treatment, where failure to treat threatens the patient’s life or threatens irreparable damage to his health, doctors and health authorities should not hesitate to apply to the courts for assistance.”

“But this merely shifts the problem where the conflict occurs and calls for a very careful examination of whether, and if so the way in which, the individual is exercising that right. In case of doubt, that doubt falls to be resolved in favour of the preservation of life, for if the individual is to override the public interest he must do so in clear terms.”

“I think that the question to be decided is whether it has been established that C’s capacity is so reduced by his chronic mental illness that he does not sufficiently understand the nature, purpose and effects of the proffered amputation.

I consider helpful Dr. Eastman’s analysis of the decision-making process into three stages: first, comprehending and retaining treatment information, second, believing it and, third, weighing it in the balance to arrive at choice.”

“Although his general capacity is impaired by schizophrenia, it has not been established that he does not sufficiently understand the nature, purpose and effects of the treatment he refuses. Indeed, I am satisfied that he has understood and retained the relevant treatment information, that in his own way he believes it, and that in the same fashion he has arrived at a clear choice.”

“If there are difficulties in deciding whether the patient has sufficient mental capacity, particularly if the refusal may have grave consequences for the patient, it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences. The view of the patient may reflect a difference in values rather than an absence of competence and the assessment of capacity should be approached with this firmly in mind. The doctors must not allow their emotional reaction to or strong disagreement with the decision of the patient to cloud their judgment in answering the primary question whether the patient has the mental capacity to make the decision.”

“Irrationality is here used to connote a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question that is to be decided could arrive at it. As Kennedy and Grubb Medical Law … point out, it might be otherwise if a decision is based on a misperception of reality (e.g. the blood is poisoned because it is red). Such a misperception will be more readily accepted to be a disorder of the mind. Although it might be thought that irrationality sits uneasily with competence to decide, panic, indecisiveness and irrationality in themselves do not as such amount to incompetence but they may be symptoms or evidence of incompetence. The graver the consequences of the decision, commensurately greater the level of competence is required to take the decision …”

“I am satisfied that, having regard to the natural rights of the mother, the proper construction of the [statutory] provision … is that the consent, if given, must be such as to amount to a fully informed, free and willing surrender or abandonment of these rights. However, I am also of the opinion that such a surrender or abandonment may be established by her conduct when it is such to warrant the clear and unambiguous inference that such was her fully informed, free and willing intention. In my view, a consent motivated by fear, stress or anxiety, or a consent or conduct which is dictated by poverty or other deprivation does not constitute a valid consent.”

“The Commission recommends that capacity will be understood in terms of an adult’s cognitive ability to understand the nature and consequences of a decision in the context of available choices at the time the decision is made.”

“… that a person will not be regarded as lacking capacity simply on the basis of making a decision which appeared unwise.”

the test is whether the patient’s cognitive ability has been impaired to the extent that he or she does not sufficiently understand the nature, purpose and effect of the proffered treatment and the consequences of accepting or rejecting it in the context of the choices available (including any alternative treatment) at the time the decision is made.

“Explained to patient re need for blood transfusion. Same refused and patient voiced that she is a Jehovah’s Witness and will not take blood”

“Patient asked again for permission to give blood transfusion. Refused same, aware of complications.”

“Hb [haemoglobin] 5.1 mmols [millimoles]. Same explained to patient and aware of consequences of not taking blood transfusion. Refused same.”

“Explained again to [Ms. K] re need for blood transfusion. Refused.”

“Because she was so ill at the time, she was not able to physically fight them as well as she wanted to and she felt that they were capable of doing anything they wanted to her. She felt that it was a rape, it was done against her will. She tried to struggle but she couldn’t, she was restrained. She tried to get up and they put her back down on the bed and they held her wrists. They injected her with some form of sedation and then they administered the transfusion while she was so sedated.”

“The doctors are not one hundred per cent sure that the blood is good for the person, and I am sure that later on there is effects of the blood transfusion.”

“What I have understood with visits of all the doctors is that my health wasn’t as serious as that and there was some alternative to propose.”

“No, I don’t think that she was in a position to make rational decisions because these decisions were not rational. So in fact she wasn’t making rational decisions and also the fact that she was suggesting that coco and tomatoes and eggs and so on, shows a complete dislocation from reality, really.”

(a) Ms. K did not sufficiently understand and retain the information given to her by the Hospital personnel as to the necessity of a blood transfusion to preserve her life,
(b) that she did not believe that information and, in particular, that she did not believe that she was likely to die without a blood transfusion being administered, and
(c) that in making her decision to refuse a blood transfusion, Ms. K had not properly weighed that information in the balance, balancing the risk of death inherent in that decision and its consequences, including its consequences for her new-born baby, against the availability of a blood transfusion which would preserve her life.

“I agree with the district court below that ‘[t]he parens patriae doctrine invoked herein cannot … measure increments of love; it cannot mandate a two-parent, rather than a one-parent family; it is solely concerned with seeing to it that minor children are cared for and not abandoned’. … Absent evidence that a minor child will be abandoned, the state has no compelling interest sufficient to override the competent patient’s right to refuse treatment. Sweeping claims about the need to preserve the lives of parents with minor children have an emotional appeal that facilely avoids both the constitutionally-required scrutiny of the state’s authority to act and the search for less restrictive alternatives.”

“In any case the Court, if satisfied that the delay caused by proceeding by motion on notice under this Order would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise and subject to such undertaking, if any, as the court may think just; and any party affected by such order may move to set it aside.”

“In my view, however, quite apart from the provisions of any rules or statute, there is an inherent jurisdiction in the courts in the absence of any express statutory provision to the contrary, to set aside an order made ex parte on the application of any party affected by that order. An ex parte order is made by a judge who has only heard one party to the proceedings. He may not have had the full facts before him or he may even have been misled, although I should make it clear that is not suggested in the present case. However, in the interests of justice it is essential that an ex parte order may be reviewed and an opportunity given to the parties affected by it to present their side of the case or to correct errors in the original evidence or submissions before the court. It would be quite unjust that an order could be made against a party in its absence and without notice to it which could not be reviewed on the application of the party affected.”

“I have no hesitation in following that line of reasoning. It is in my view both good law and good sense. It would be most unjust to deny a party against whom an ex parte order had been made the opportunity of applying to court to set it aside and instead to insist that the only remedy was one of appeal to the Supreme Court.”

“An interim injunction is granted ex parte only in exceptional circumstances, and then only subject to the triple safeguard of (i) the duty of full and frank disclosure, (i) the cross-undertaking in damages which is required as a matter of course and (iii) the right of the party enjoined to apply to vary or discharge the ex parte order. If an interim declaration were a remedy known to English law it would hardly be obtainable without the same safeguards being put in place.”

“On any application made ex parte the utmost good faith must be observed, and the applicant is under a duty to make full and fair disclosure of all of the relevant facts of which he knows, and where the supporting evidence contains material misstatements of fact or the applicant has failed to make a sufficient or candid disclosure, the ex parte order may be set aside on that very ground. …

The obligation extends to counsel. There is an obligation on the part of counsel to draw the judge’s attention to the relevant Rules, Acts or case law which might be germane to his consideration. That is particularly so where such material would suggest that an order of type sought ought not to be made.”

“… but in neither of those appeals nor in any case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall into a category of court order that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside. The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind; what they do support is a quite different proposition that there is a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make.”

“Counsel for the respondents urged that it was legitimate to depart from established principles of natural justice, including audi alteram partem, where there was an immediate risk of significant harm. There were well established procedures under our law enabling court orders to be made either of a restrictive or a mandatory nature without the persons affected being afforded an opportunity to be heard. The procedures under the Domestic Violence Act, 1996, for the granting of interim barring orders on an ex parte basis reflected the procedures established by Order 52, rule 3 … for the granting of injunctions on an ex parte application. He cited, in this connection, the decisions of this Court in O’Callaghan v. Commissioners of Public Works [1985] I.L.R.M. 364, The State (Lynch) v. Cooney [1982] I.R. 337 …”

“The mandatory nature of the interim barring order, even when granted on an ex parte application, is in sharp contrast to the nature of the interim or interlocutory injunctions typically granted in civil proceedings. Such injunctions are normally intended to do no more than preserve the status quo pending the determination of the parties’ rights in plenary proceedings. While they may on occasions be mandatory in nature, that is unquestionably the exception rather than the rule. It is even rarer for mandatory injunctions to be granted on an interim basis on the ex parte application of the plaintiff.

Even more strikingly, although an interim injunction may be granted on an ex parte application in the absence of the defendant, the courts have always been concerned to ensure that the interference thus effected with what may very well be a right which the defendant is entitled to exercise without such interference, is as limited in its duration as is practicable. In the High Court, the injunction will not normally last beyond the next motion day and, in many cases, the court will abridge the time for service of a notice of motion so as to ensure that the defendant is heard in a matter of days. With the hearing of the notice of motion, the interim injunction automatically expires.”

“Of particular importance is the fact that it ensures that the individual always has some form of independent legal representation. If she does not have her own counsel, she is represented by the Official Solicitor. In this jurisdiction, this could be provided through the adoption in the capacity context of Lynch J.’s recommendation in In re a Ward of Court that a guardian ad litem be appointed to act for the individual involved unless she has her own legal representation. Even in an emergency situation, the person whose rights are at stake should have independent representation.”

“It is necessary to consider, in general terms, the criteria which the court should apply in the exercise of such discretion. Clearly the court should have regard to all of the circumstances of the case. However, the following factors appear to me to be the ones most likely to weigh heavily with the court in such circumstances:-

“Taking those authorities it would seem that the test by reference to which materiality should be judged is one of whether objectively speaking the facts could reasonably be regarded as material with materiality to be construed in a reasonable and not excessive manner.”

“In effect, the case made on behalf of the applicants is that, where a married couple arrive in Ireland in circumstances which render them illegal immigrants and the wife gives birth to a child, the entire family are entitled to remain in Ireland at least until such time as the child reaches his or her majority, that this right derives from the Irish citizenship of the newly born child and the constitutional rights of such a child to the society and care of its parents and that arises irrespective of the length of time which elapses between their arrival in the State and the birth of the child. It is claimed that the only qualification to which the exercise of those rights is subject is the liability of the non-national members of the family to be deported from the State where the respondent is of the opinion on reasonable grounds that they are engaged in activities inimical to the common good or likely to be so engaged.”