1. Consent in Vulnerable Adults Jeananne McGovern B.L. 1

2. Competence to make a decision Capacity Decision making ability - bad decision v’s unable to make a decision, who determines this? E.g. Elderly people, intellectual disabilities, mental illness 2

3. Rights of a vulnerable adult All persons have equal legal rights Constitutional rights 40.1 “All citizens shall as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function” 40.3.1 “The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen” 40.3.2 “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen” Right to consent to or to refuse medical treatment Autonomy and self-determination Where intervention is required it must be in the least restrictive manner with minimal restriction on a persons rights 3

4. Legal framework governing capacity There is currently no statutory definition of capacity in Irish law as the Assisted Decision-Making (Capacity) Act 2015 has not yet been commenced. The Act proposes that a person lacks capacity if he or she is unable –  To understand the information relevant to the decision  To retain that information  To use or weigh that information as part of the process of making the decision, or  To communicate his or her decision (whether by talking, using sign language or any other means) or, if the decision requires the act of a third party to be implemented, to communicate by any means with that third party. Functional approach. 4

5. The Mental Capacity Act 2005 in the United Kingdom provides that an individual is presumed to have the capacity to make a decision in relation to treatment unless he or she is – Unable to take in and retain the information material to the decision, especially as to the likely consequences of having or not having the treatment or – Is unable to believe the information or – Is unable to weigh the information in the balance as part of the process of arriving at the decision 5

6. Convention on the Rights of Persons with Disabilities Adopted by UN on 13 December 2006 Ireland has signed it but not yet ratified it European Union Directive 2010/48/EC Article 1 - Purpose The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others 6

7. Convention on the Rights of Persons with Disabilities Article 3 – general principals Article 12 – equal recognition before the law Article 13 – access to justice Article 14 – liberty and security of the person 7

8. Convention on the Rights of Persons with Disabilities ctd MX v HSE [2012] 3 IR 254 Capacity, right to self determination, right to bodily integrity, right to privacy, treating doctor claimed patient lacked capacity to consent to or refuse treatment Sections 57 and 60 of the Mental Health Act 2001 (as amended) – treatment and consent Capacity to be assessed in a specific and tailored manner, “best interests” test How CRPD is to be interpreted in this jurisdiction 8

9. Case Law Right to bodily integrity – Ryan v Attorney General [1965] 1 IR 294 – Re a Ward of Court (Withholding medical treatment) (No 2) [1996] 2 IR 79 – Supreme Court found that there is a limited “right to die”, treatment providing no curative effect – Fleming v Ireland & Others [2013] IESC 19 – court asked to consider whether a person as a “right to die” 9

10. Case Law Capacity Fitzpatrick and Ryan v FK and the Attorney General [2009] 2 IR 7  In proceeding to consider the issue of capacity Ms Justice Laffoy held that there was a presumption that an adult patient had the capacity to make a decision to refuse medical treatment, but that presumption could be rebutted.  Ms Justice Laffoy also endorsed the three-stage approach adopted in Re C (Adult Refusal of Medical Treatment). She found that the patients cognitive ability will have been impaired to the extend that he or she is incapable of making the decision to refuse the proffered treatment if the patient: 10

11. Fitzpatrick and Ryan v FK and the Attorney General  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 patients death, has not believed that outcome is likely, and  Has not weighed the treatment information, in particular the alternative choices and the likely outcomes in the balance in arriving at the decision. 11

12. When does the Court intervene? Health Service Executive v J. O’B [2011] IEHC 73 Birmingham J was asked to invoke the inherent jurisdiction of the court to protect a vulnerable adult. He considered the Courts role in permitting the detention of JOB in a secure therapeutic setting. He stated “….in more limited cases, where an adult lacks capacity and where there is a legislative lacuna so that the adult’s best interests cannot be served without intervention by the Court, I am satisfied that the Court has jurisdiction, by analogy with cases like DG and the several High Court decisions from different judges of the High Court there referred to, to intervene”. 12

13. In Health Service Executive v VF [2014] 3 IR 305 a lacuna in the legislation was identified but it was clear that VF, as a vulnerable adult, was in need of special therapeutic and welfare services and treatment only in a facility not governed by the Mental Health Act 2001. It was claimed that Ms F lacked capacity to make decisions concerning her own care and she did not have the competence to look after herself or be maintained in the community. Mr Justice McDermott found that on the balance of probabilities Ms F did not have capacity to make decisions concerning her life matters, welfare etc. the inherent jurisdiction of the court could be invoked where there was a real and substantial risk to the person's health, safety and life. 13

14. Health Service Executive v VF, Mr Justice McDermott In an application to invoke the inherent jurisdiction of the Court, a number of constitutional rights were engaged, namely the right to personal liberty under Article 40.4.1° and the unenumerated rights under Article 40.3°. The object of the deprivation of liberty was to protect the life and bodily integrity of the defendant in accordance with the obligation imposed on the State under Article 40.3.2°. The means had to be rationally connected to this pressing and substantial objective, the least restrictive alternative and proportionate to that objective. 14

15. Health Service Executive v VF, Mr Justice McDermott Obiter dictum : That this was a rare and exceptional order which should not be allowed to evolve into a preferred option. The oversight of the care and treatment of persons with mental incapacity on a day to day basis would be better addressed by the appropriate professionals within an improved statutory framework 15

16. UK decisions on Vulnerable Adults Re SA (Vulnerable Adult) [2006] F.L.R. 867 re capacity to marry Re S (Adult Patient: jurisdiction) [1995] 2 WLR 38 re personal welfare of a vulnerable adult. Injunction granted to stop the son and wife of an elderly infirm man, a Norwegian national, taking him back to Norway out of the care of his partner in the UK. Re PS [2007] EWHC 623 “….there is no doubt that the court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the vulnerable adult’s welfare and interests” 16

17. Consent to Treatment HSE v VF – did the patient lack the capacity to consent to the provision of necessary and appropriate psychiatric treatment RE E (Medical Treatment Anorexia) [2012] EWHC 1639 – patient refusing treatment, application to have her forcibly fed, presumption in favour of preservation of life. Number of unreported cases concerning treatment of patients suffering from Anorexia Nervosa in recent times before the High Court 17

18. Cases invoking the inherent jurisdiction of the Court – will they continue in this manner once the Assisted Decision Making (Capacity) Act 2015 comes into force which proposes a statutory decision making framework in relation to capacity Certain types of cases have continued in the United Kingdom post the 2005 Act 18

19. UK Practice Direction – July 2015 concerning “Applications Relating to Serious Medical Treatment” which makes provision for inherent jurisdiction type cases where serious medical treatment is required. Serious medical treatment is defined for this purpose as treatment which involves providing, withdrawing or withholding treatment in circumstances where: 19

20. -(if a single treatment is proposed) there is a fine balance between its benefits and burdens and risks; -(if there is a choice) a decision as to which treatment is finely balanced; or -The treatment, procedure or investigation would be likely to involve serious consequences for the patient. 20

21. Mental Health Act 2001 (as amended) Involuntary detention Section 3 – mental disorder Section 4 - best interests Section 57 - consent to treatment Section 60 - treatment Approach – recent change section 59 21

22. Mental Health Act 2001 (as amended) Section 57 (1) The consent of a patient shall be required for treatment except where, in the opinion of the consultant psychiatrist responsible for the care and treatment of the patient, the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering, and by reason of his or her mental disorder the patient concerned is incapable of giving such consent. 22

23. Mental Health Act 2001 (as amended) Section 59 (1) A programme of electro-convulsive therapy shall not be administered to a patient unless either— (a) the patient gives his or her consent in writing to the administration of the programme of therapy, or (b) where the patient is unable or unwilling to give such consent— (i) the programme of therapy is approved (in a form specified by the Commission) by the consultant psychiatrist responsible for the care and treatment of the patient, and (ii) the programme of therapy is also authorised (in a form specified by the Commission) by another consultant psychiatrist following referral of the matter to him or her by the first-mentioned psychiatrist. 23

24. Mental Health Act 2001 (as amended) Section 60 Where medicine has been administered to a patient for the purposes of ameliorating his or her mental disorder for a continuous period of 3 months, the administration of that medicine shall not be continued unless either— (a) the patient gives his or her consent in writing to the continued administration of that medicine, or (b) where the patient is unable or unwilling to give such consent— (i) the continued administration of that medicine is approved by the consultant psychiatrist responsible for the care and treatment of the patient, and (ii) the continued administration of that medicine is authorised (in a form specified by the Commission) by another consultant psychiatrist following referral of the matter to him or her by the first-mentioned psychiatrist, and the consent, or as the case may be, approval and authorisation shall be valid for a period of 3 months and thereafter for periods of 3 months, if, in respect of each period, the like consent or, as the case may be, approval and authorisation is obtained 24

25. Most recent amendment Mental Health Amendment Act 2015 Removes the word ‘unwilling’ with reference to consent to ECT and medication administered for a period longer than 3 months. The word unwilling has been removed – reflects a move towards a more autonomous position for patient 25