The Right to Refuse Treatment – Recent English Judgment
Last month the English Court of Protection made headlines when it ruled that it would be lawful to impose treatment on a cancer patient, despite her refusal to consent to same.
In the case of DH NHS Foundation Trust v PS (2001) EWHC 1217, the Court heard that the patient had been diagnosed with uterine cancer, which was slow growing but which would, without surgical intervention, ultimately spread and lead to her death. The patient had previously agreed to undergo surgery however she subsequently failed and on occasion refused to attend hospital for treatment.
In addition to a phobia of hospitals and needles, the patient was described as having a learning disability which rendered her lacking in capacity to make decisions about her treatment within the meaning of the Mental Capacity Act 2005.
In these proceedings the NHS applied for declarations to permit special arrangements including if necessary non-consensual sedation and the use of force to administer same in order to ensure that the patient undergoes surgery. Finding in favour of the NHS, the Court determined that surgical intervention was in the patient’s best interests and based its decision to grant the declarations sought by the NHS on the fact that the patient lacked the mental capacity to make the decision to refuse treatment.
The position regarding mental capacity in Ireland differs from that of the UK because there is presently no Irish equivalent of the UK Mental Capacity Act 2005. This means that legal tests regarding mental capacity largely depend on judicial interpretations of the term.
Mental capacity is however currently under review in this jurisdiction. In 2006 the Law Reform Commission published its Report on Vulnerable Adults and the Law, and in 2008 the Department of Justice published the scheme of a proposal Mental Capacity Bill. It is to be hoped that mental capacity legislation, when introduced in Ireland, will provide proper protection for vulnerable adults and welcome guidance for clinicians who strive to provide appropriate treatment for their patients.