The High Court gives consent to treatment for incapacitated patient
In mid May 2012 the High Court gave permission to a hospital to amputate an unconscious patient’s leg based on evidence that the operation was necessary to save his life.
Following the patient’s admission to the hospital it had been decided that as a result of his medical condition he required femoral-popliteal bypass surgery in the right leg in order to circumvent blocked femoral arteries. The patient consented to this operation but his condition worsened and he lost consciousness before surgery was performed. The condition of his leg deteriorated and gangrene spread below the knee. Doctors concluded that the planned surgery was no longer an option and the right leg must be amputated. Family members were consulted and two refused consent, while another indicated that consent might be given.
In the circumstances, the hospital made an emergency application to the High Court which was advised that the amputation was necessary to save the patient’s life, alternatives had been considered and ruled out, and furthermore if doctors waited until the patient regained consciousness it would be too late. The Court was also advised of the consequences should the surgery not take place in early course.
Mr Justice Roderick Murphy granted the Order but allowed for a period of hours to permit the family oppose the Order. No such application was made.
The following week the High Court was informed that the operation had been carried out successfully.
Two pieces of legislation are in the pipelines that, if implemented, will see mechanisms put in place for dealing with scenarios like this. The first is the Mental Capacity Bill, publication of which is awaited, and the second is the Advance Healthcare Decisions Bill 2012 that is currently before the Oireachtas.
At the moment, in cases such as this where the patient is unable to give a valid consent and where there are no valid alternative means to secure consent, applications are made the High Court under its parens patriae jurisdiction to authorise the giving or withholding of treatment.
In January 2012 the High Court granted an Order permitting a hospital to withhold resuscitation from a very unwell 6 year old boy if his condition worsened to the point that resuscitation was required. The child’s parents did not support the application.
In February 2012 the High Court granted a hospital an Order allowing it to administer a blood transfusion to a 3 year old Jehovah’s Witness should it be required during or as a result of surgery.
For further information, please contact a member of our Healthcare team.