1. Consent in Vulnerable Adults & those with Mental Health Issues
Ciara Johnson BL

2. Contents Rights of a vulnerable person Categories of vulnerable adults
Mental capacity to consent
Legal framework governing capacity
The test for capacity
Consent where a person is lacking mental capacity
When does the Court intervene?
Consent in relation to the Mental Health Act 2001
Reform and moving forward

3. Rights of a Vulnerable Adult

4. 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”
“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”
“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”

5. Right to consent to or to refuse medical treatment
Healy v Buckley & anor [2015] IECA 251, Ryan P: ‘The option of doing nothing is always available to the patient’.
Unremunerated right to bodily integrity and self-determination/autonomy.
In re a Ward of Court (Withholding of Medical Treatment) [1996] 2 IR 79
Right to refuse treatment is also outlined in the Medical Council Guidelines at Section 15:
‘Every adult with capacity is entitled to refuse medical treatment or withdraw consent. You must respect a patient’s decisions to refuse treatment or withdraw consent, even if you disagree with that decision. In these circumstances, you should explain clearly to the patient the possible consequences of refusing treatment and, where possible, offer the patient a second medical opinion.’
Where intervention is required it must be in the least restrictive manner with minimal restriction on a persons rights

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

7. Article 3 – general principals
Article 12 – equal recognition before the law
Article 13 – access to justice
Article 14 – liberty and security of the person

8. Categories of Vulnerable Adults

9. Categories of Vulnerable Adults
Elderly persons with diminished capacity;
Adults with intellectual disabilities; and
Persons with mental health difficulties who have episodes of incapacity.

10. Mental Capacity to Consent

11. 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

12. Courts Inherent Jurisdiction
The Courts have an inherent decision-making authority in cases of person who lack capacity. This is under Section 9(1) of the Courts (Supplemental Provisions) Act 1961.
This section vests jurisdiction in the High Court in lunacy and minor matters.
If a person is made a Ward of Court – the Court has jurisdiction over all matters relating to their estate and person.
This jurisdiction is vested in the President of the High Court.

13. The test for Capacity Fitzpatrick v FK [2008] IEHC 104
The Court found the following principles to be applicable when looking at the issue of capacity:
“1. 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.”

14. “2. In determining whether a patient is deprived of capacity to make a decision to refuse medical treatment whether –
(a) by reason of permanent cognitive impairment, or
(b) temporary factors, for example, factors of the type referred to by Lord Donaldson in In re T,
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.”

15. “3. The three-stage approach to the patient’s decision-making process adopted in the C case 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–
(a) 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,
(b) 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, and
(c) has not weighed the treatment information, in particular, the alternative choices and the likely outcomes, in the balance in arriving at the decision.”

16. “4. The treatment information by reference to which the patient’s capacity is to be assessed is the information which 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.”

17. “5. 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.”

18. “6. 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 which are likely to ensue from the acceptance or rejection of the proffered treatment. In the private law context this means that, in applying the civil law standard of proof, the weight to be attached to the evidence should have regard to the gravity of the decision, whether that is characterised as the necessity for “clear and convincing proof” or an enjoinder that the court “should not draw its conclusions lightly”.”

19. Where capacity is manifestly absent
’Best Interests’ – if consent is manifestly absent – the Court will proceed in accordance with the individuals best interests.
Who then has authority to consent?
In Re a Ward of Court (No 2) [1996] 2 IR 73
Decision making doesn’t automatically pass to next-of-kin (save in specific circumstances)
“The loss by an individual of his or her mental capacity does not result inany diminution of his or her personal rights recognised by the Constitution, including the right to life, the right to bodily integrity, the right to privacy, including self- determination, and the right to refuse medical care or treatment.
The ward is entitled to have all these rights respected, defended, vindicated and protected from unjust attack and they are in no way lessened or diminished by reason of her incapacity.”

20. Best Interests Approach
Chief Justice Hamilton in In Re a Ward of Court (No 2) [1996] 2 IR 73:
“In the exercise of this jurisdiction the court's prime and paramount consideration must be the best interests of the ward. The views of the committee and family of the ward, although they should be heeded and careful consideration given thereto, cannot and should not prevail over the court's view of the ward's best interest.”
Parens Patriae
Court in exercising jurisdiction will look at:
The medical evidence before the Court; and
The circumstances which are specific to the case.

21. Where there is uncertainty in relation to capacity
If there is uncertainty in relation to a persons capacity, there will be a requirement for further assessment.
Where it ceases to be impossible to assess a persons capacity, the Court is placed in a difficult position if the patient had previously.
JM v St Vincent’s Hospital [2003] 1 IR 321
If a patient remains capable of engaging with treating staff, then a formal assessment of the patient should take place and this will aid the Court
HSE v MX [2012] 1 IR 81

22. Assessing Capacity LRC say:
Assessment of capacity should be narrowed to the particular decision that needs to be made.
The fact that a person lacks legal capacity in relation to one decision does not mean that they necessarily lack capacity in relation to a different type of decision.
They recommend a “functional approach” to capacity assessment – assessing a person’s capacity to make a particular decision.
Practically how will capacity be assessed:
By an independent psychiatrist or other relevant expert;
Assessment focusses on the issue of capacity;
Court application is on notice to the patient;
The patient may be legally represented.

23. Fluctuating Capacity
Assessment should take place as close as possible to the time when the decision is to be taken.
In the Matter of SCR [2015] IEHC 308

24. Following a capacity assessment
If a person is found to have capacity to make the decision, then their wishes should be respected, even if it would be considered unwise.
If it is found that a person does not have capacity, then the matter proceeds with what is in the person’s best interests.

25. 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”.

26. 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 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.

27. 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 ° 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 °. The means had to be rationally connected to this pressing and substantial objective, the least restrictive alternative and proportionate to that objective.

28. 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

29. 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

30. Consent in relation to the Mental Health Act 2001

31. 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

32. 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.

33. 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.

34. 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

35. 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

36. Reform and moving forward

37. The Assisted Decision-Making (Capacity) Act 2015
Provides for a statutory framework for adults to make legally binding agreements to be assisted and/or to be supported in making decisions about their welfare and their property or affairs.
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.

38. Section 8(7)
“Any act done or decision made under the Bill in support or on behalf of a person with impaired capacity must give effect to the person’s will and preferences”
Differs from the ‘best interests’ approach