Making decisions about our own medical treatment is a fundamental right. But what happens when someone is unable to make those decisions for themselves? This complex and sensitive issue lies at the heart of medical ethics and law, requiring a careful balance between a person’s autonomy and their well-being.
Recent court cases in Ireland have highlighted the challenges that arise when patients lack the capacity to consent to life-saving procedures. This blog post explains the core principles of capacity and consent, examines the legal framework provided by the Assisted Decision-Making (Capacity) Act 2015, and discusses recent court rulings that shed light on how these principles are applied in practice.
Understanding Capacity and Consent
Before looking at the legal framework, it is important to understand two key concepts: capacity and consent.
What is Capacity?
Capacity is the ability to understand, remember, and weigh information to make a decision and then communicate that decision. Under Irish law, every adult is presumed to have capacity unless it is proven otherwise.
Crucially, capacity is not an all-or-nothing concept. It is assessed on a functional and time-specific basis. This means a person might have the capacity to make some decisions but not others. For example, they may be able to decide what to eat for lunch but not be able to comprehend the complex risks of a major surgery. A diagnosis of a mental illness or a cognitive impairment alone is not sufficient to determine that a person lacks capacity.
What is Consent?
In a medical context, consent is the voluntary agreement a patient gives to undergo a specific treatment, procedure, or examination. For consent to be valid, the person must have the capacity to make the decision, be properly informed of the benefits and risks, and make their choice freely, without pressure from others.
When a person lacks the capacity to consent, healthcare professionals and the courts must navigate a difficult path to ensure any decision made is in the patient’s best interests.
The Assisted Decision-Making (Capacity) Act 2015
The Assisted Decision-Making (Capacity) Act 2015 (ADMCA), as amended in 2022, provides a modern, rights-based legal framework for supporting individuals whose decision-making capacity may be in question. It prioritises a person’s autonomy, ensuring they retain as much control as possible over their own lives.
Key Features
The ADMCA is built on several guiding principles:
- Presumption of Capacity: Every person is presumed to have the capacity to make their own decisions.
- A Functional and Specific Approach: Capacity is assessed based on the specific decision at a particular time.
- Decision Support Over Substitution: The Act establishes frameworks to help individuals make their own choices, rather than having others make decisions for them.
Levels of Support
The ADMCA introduced a tiered system of support to help people make decisions:
- Decision-Making Assistant: For individuals who need help gathering and explaining information but can still make the decision themselves. This could involve reviewing financial documents or contracts.
- Co-Decision Maker: For those who require a trusted person to make decisions collaboratively with them. This is often used for managing healthcare or financial matters jointly with a family member.
- Decision-Making Representative (DMR): Appointed by the courts when an individual is unable to make certain decisions on their own. The DMR must act in accordance with the person’s known will and preferences.
Recent Cases in the High Court
Several recent High Court cases illustrate how the principles of the ADMCA are applied in real-world medical situations.
Chemotherapy Treatment for a Woman with Advanced Cancer
In September 2023, a hospital sought court orders to administer chemotherapy to a woman in her 60s with advanced cancer. The woman, who had been in a residential unit since a stroke nearly two decades prior, was deemed to lack the capacity to make decisions about her diagnosis and treatment.
Without treatment, her doctors believed the outcome would be fatal. With chemotherapy, she had a 30-40% chance of a better outcome. A court-appointed guardian attempted to ascertain her views, but she refused to engage. However, the guardian noted that all medical evidence supported the treatment. The woman’s sister also supported the application, believing it is what the woman would have wanted if she had capacity. The court granted the orders, allowing her to be brought to the hospital for outpatient treatment.
Leg Amputation to Save a Man’s Life
In another case, a High Court judge permitted doctors to amputate the leg of a man in his 60s. The tissue in his lower left limb had become necrotic following complications from a previous procedure, causing him to suffer from delirium and delusional thoughts.
A consultant psychiatrist determined that the man was unable to understand or weigh the clinical information about his condition. A vascular surgeon advised that without an amputation, the man would develop a life-threatening infection. Mr Justice O’Donnell described the situation as a “stark choice” between amputation and allowing the man to live, or refusing the operation, which would lead to increased delirium, a fatal infection, and ongoing pain. The judge granted the order, stating that the court’s intervention was necessary to protect the man’s constitutional right to life and bodily integrity.
Contesting a Will
The ADMCA’s reach extends beyond medical treatment. In a landmark case, a man with bipolar disorder sought to contest his late father’s will. Due to his declining mental health, his ability to manage the legal proceedings was severely compromised. The court invoked the ADMCA to appoint a Decision-Making Representative (DMR) to act on his behalf. This ensured his legal rights were protected while respecting his known will and preferences, demonstrating the Act’s commitment to preserving an individual’s dignity.
Ethical Considerations
These cases force us to confront profound ethical questions about the balance between personal autonomy and well-being.
Balancing Autonomy and Well-being
The core ethical challenge is how to act when a person’s autonomy—their right to choose—conflicts with what is considered necessary for their well-being. The ADMCA framework aims to resolve this by ensuring that a person’s will and preferences remain the guiding principle, even when they cannot make the final decision themselves.
Acting in a Person’s Best Interests
When a decision must be made for someone lacking capacity, it must be in their “best interests.” This involves considering all relevant factors, including their known past and present wishes, their beliefs and values, and the views of those close to them. As seen in the recent cases, it also requires weighing the potential benefits of a treatment against its risks and burdens.
Navigating Complex Decisions
The Assisted Decision-Making (Capacity) Act 2015 provides an essential framework for navigating some of the most difficult decisions in life. It ensures that individuals who may lack capacity are treated with dignity and respect, and that their voice remains at the centre of the decision-making process. The recent court rulings demonstrate a judiciary committed to upholding these principles, carefully balancing the right to life with the right to self-determination.
If you are facing a situation involving questions of capacity, consent, or the need to appoint a decision-making support, seeking expert legal advice is crucial. The team at HOMS Assist has deep experience in this area and can guide you through the process with professionalism and empathy.
Contact our specialist solicitors in Dublin, Limerick, or Cork for practical and expert advice tailored to your circumstances. You can reach us at 1800 207 207 or email [email protected].
