BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

High Court of Ireland Decisions


You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Fitzpatrick & Anor -v- K. & Anor [2008] IEHC 104 (25 April 2008)
URL: http://www.bailii.org/ie/cases/IEHC/2008/H104.html
Cite as: [2008] IEHC 104

[New search] [Help]


Judgment Title: Fitzpatrick & Anor -v- K. & Anor

Neutral Citation: [2008] IEHC 104


High Court Record Number: 2006 4427 P

Date of Delivery: 25 April 2008

Court: High Court


Composition of Court: Laffoy J.

Judgment by: Laffoy J.

Status of Judgment: Approved



[2008] IEHC 104
THE HIGH COURT

2006 No. 4427 P
BETWEEN/
CHRIS FITZPATRICK AND JOHN RYAN

PLAINTIFFS
AND

F.K.

AND

THE ATTORNEY GENERAL

DEFENDANTS

Judgment of Miss Justice Laffoy delivered on the 25th day of April, 2008.

I. The Proceedings
The parties
The first plaintiff is the Master of the Coombe Women’s Hospital (the Hospital) and the second plaintiff is the Secretary/Manager of the Hospital. The Master and the second plaintiff sue in such respective capacities.
The first defendant, who will be referred to as Ms. K, an African woman from the Democratic Republic of Congo (DRC), aged 23 years of age at the time, was a patient of the Hospital on 21st September, 2006. At 9.46 a.m. on that day she gave birth to a baby boy. Shortly thereafter she suffered a massive post partum haemorrhage resulting in cardiovascular collapse. As part of the resuscitation procedures when O Negative blood, which is stored in the delivery suite fridge for emergencies, was being prepared for immediate transfusion, the medical personnel present were told that Ms. K would not take blood because she was a Jehovah’s Witness.
The second defendant, the Attorney General, was joined in these proceedings because it was anticipated by the plaintiffs that questions as to the interpretation of the Constitution would arise in the proceedings, and that the plaintiffs would be required to serve notice on him by virtue of O. 60, r. 2 of the Rules of the Superior Courts, 1986 (the Rules). It is not clear to me, however, that the court directed the service of such notice.
Novelty of the core issue
Apparently, this is the first case in which an Irish court has been asked to decide the core issue which underlies these proceedings. It is whether and, if so, in what circumstances, a court may intervene in the case of a patient, who is an adult and is not non compos mentis, who has refused medical treatment, and by order authorise the hospital and its personnel in which he or she is a patient to administer such treatment to the patient. The issue arises in circumstances in which Ms. K was transfused in the Hospital on the afternoon of 21st September, 2006 on the authority of an order of this Court (the ex parte order) granted on an ex parte application made by the plaintiffs.
This judgment follows a plenary hearing which lasted 37 days. It is necessary, because of the unusual nature of the process and the range of issues raised at the hearing by the parties, to outline the process to date in some detail, although ultimately the outcome of the proceedings largely turns on questions of fact.
Ex parte application
In order to put the ex parte application in context, it is necessary to elaborate on the essential facts. The evidence will be considered in greater detail later.
As I have stated, the emergency occurred shortly before 10 a.m. on 21st September, 2006. The immediate concern of the medical personnel was to resuscitate and stabilise Ms. K. That process continued for approximately one and a half hours, during which Ms. K persisted in her refusal to accept a blood transfusion. The medical personnel treating Ms. K. were concerned that she would die without a blood transfusion. The Master, who is the most senior obstetrician in the Hospital and has ultimate responsibility for the patients being treated there, was called to the delivery suite where he arrived at about 11.30 a.m. I think it is fair to record that the Master accepted full responsibility for the crucial decisions which were subsequently made in relation to Ms. K’s treatment, the decision to apply to the High Court and the decision to transfuse Ms. K on the authority of the High Court Order.
Having examined Ms. K and reviewed her management up to that time, and having considered what products, procedures and therapies were available as an alternative to administration of a blood transfusion, some of which had been put in place, the Master concluded that a blood transfusion was necessary to save Ms. K’s life. Following discussions with Ms. K as to her condition, during which she reiterated her refusal to accept a blood transfusion, the Master had doubts as to the quality of her refusal, that is to say, whether it was a valid refusal. At around noon he contacted the Hospital’s solicitors for legal advice. At 12.30 p.m. he left the Hospital for the Four Courts with a view to applying to this Court for authority to transfuse Ms. K. On his arrival, at around 1 p.m., he met the Hospital’s solicitor and counsel. He had a hurried consultation with them, partly en route to the court room in which applications were being heard on that day.
The judge hearing urgent applications on that day was Abbott J. He commenced hearing the plaintiffs’ ex parte application at about 1.15 p.m. Counsel disclosed to the court the information he had been given by the Master. The Master testified that the facts given to the court were true. Counsel then made submissions. At about 1.45 p.m. Abbott J. made the ex parte order, the operative part of which, as perfected, was in the following terms:
          “It is ordered that the Plaintiff be authorised to administer to the Defendant including all appropriate steps by way of restraint or otherwise all appropriate medical treatment and other ancillary procedures including blood transfusion and clotting agents.”
Having regard to the adopted by her counsel on behalf of Ms. K, it is appropriate to note the following matters in relation to the ex parte order. First, it was made before a plenary summons had issued. This fact is recorded on the face of the order, in that it was expressly made in the matter of an “intended” action between the plaintiffs and Ms. K. It is also recited that counsel had undertaken to issue a plenary summons by close of business on the following day, Friday, 22nd September, 2006. Secondly, it was made ex parte. This fact is recited in the order. Thirdly, no affidavit was filed in support of the application. Again, this is apparent on the face of the order, in that it recited that oral evidence was given by the Master. Fourthly, it was not limited in time, for example, until further order made on an interlocutory application. It did not envisage there being an inter partes application for an interlocutory injunction pending the hearing of the action following service of the proceedings on, and notice of such application to, Ms. K. Instead, it directed the plaintiffs to deliver a statement of claim within seven days and ordered that the matter be listed for mention on Monday, 9th October, 2006. Fifthly, apparently, no undertaking as to damages was proffered by the plaintiffs. Finally, it provided that each party should have liberty to apply.
There was no stenographer present for the hearing. However, there was admitted in evidence at the plenary hearing an attendance note made by the plaintiffs’ solicitor of what transpired. I am fully satisfied that the attendance note is as comprehensive and accurate as could be expected given the circumstances. I will be returning to it later.
The Master arrived back at the Hospital about 2.30 p.m. He told Ms. K that the court had made an order authorising that she be transfused. She remained adamant that she did not want a blood transfusion. She was upset and agitated. She was administered a sedative. The transfusion commenced at around 2.35 p.m. Accordingly, the ex parte order of the court was given effect to about an hour after it was made.
The pleadings
The plenary summons was issued on 22nd September, 2006 and the statement of claim was delivered on 29th September, 2006 in compliance with the ex parte order. As I have indicated, the Attorney General was named as a co-defendant in the proceedings.
In the statement of claim the plaintiffs pleaded the facts in terms similar to the factual evidence given to Abbott J. on 21st September, 2006. The assertions on which they based their case, insofar as it was pursued at the hearing, may be summarised as follows. First, it was asserted that, notwithstanding that Ms. K was fully conscious and had been stabilised, the plaintiffs were concerned that she might not be in a position to make a fully informed decision to refuse consent to the medical procedures necessary to save her life, setting out the factors which gave rise to the concerns, to which I will return. Secondly, it was asserted that the State, including its judicial arm, was obliged by Article 40.3.1, Article 40.3.2, Article 41 and Article 42.5 of the Constitution to safeguard the constitutional rights of Ms. K’s baby, which rights included the right to be nurtured and reared by Ms. K. The State’s duty extended to ensuring that all appropriate medical steps were taken to safeguard Ms. K’s life, especially since the medical procedures required for the purpose were routine and non- life-threatening and the plaintiffs had genuine and real concerns that she might not have been in a position to give a valid informed refusal of consent to treatment. The reliefs sought by the plaintiffs included an injunction in terms broadly similar to the ex parte order. Happily, Ms. K made a full recovery and she was discharged from the hospital with a healthy baby boy on 28th September, 2006. Therefore, there is no longer a basis for granting permanent injunctive relief. However, the plaintiffs have also sought declaratory relief, including:
(a) a declaration that the Hospital was and is entitled to apply to the court for the injunction sought by virtue of the Articles of the Constitution referred to above and a declaration that the court was and is entitled to and/or obliged to grant that relief by virtue of the same Articles; and
(b) a declaration that Ms. K’s rights under Article 44.2.1 of the Constitution must yield to the State’s obligations under the Articles referred to above.
Ms. K’s defence, coupled with a counterclaim, was delivered on 16th December, 2006. Prior to that, the solicitors who appeared for Ms. K in these proceedings had issued an application seeking to join the Watch Tower Bible and Tract Society of Ireland (the Society), which is the legal body which represents Jehovah’s Witnesses in Ireland, either as a co-defendant or as a notice party. The application was heard by Clarke J., who also considered whether it might be appropriate to join the Society as an amicus curiae. Clarke J. delivered his judgment on 7th December, 2006 (reported as Fitzpatrick and Ryan v. F.K. [2007] 2 I.R. 406: [2008] I.L.R.M. 68) refusing the application.
Ms. K was given leave in July, 2007 to amend her defence and counterclaim. I propose considering her case on the pleadings by reference to the amended defence and counterclaim which was subsequently delivered. Broadly speaking, Ms. K’s case as pleaded, insofar as it relates to the plaintiffs’ case as pursued at the hearing, contains the following assertions and traverses:
(1) That the ex parte order should not have been applied for and should not have been made and should be set aside pursuant to O. 52, r. 3 of the Rules on the ground that it was obtained without notice to Ms. K, a competent adult. It was contended that the order sought was in the nature of a final order, which was made in breach of Ms. K’s rights under the rules of natural justice and, in particular, the principle audi alteram partem, and in violation of her rights under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). The first relief sought in the counterclaim arising out of that contention was an order “that these proceedings be struck out and dismissed as an abuse of the process of the court and/or alternatively” pursuant to O. 52, r. 3.
(2) That the transfusion administered was unlawful in that it was not in compliance with the ex parte order. The import of this assertion, as amplified in replies to notices for particulars, is that it is contended that the order only authorised a transfusion where it was necessary to do so for the preserving of Ms. K’s life and at the time of the transfusion no such necessity existed.
(3) A denial of the plaintiffs’ assertion that Ms. K was not in a position to make a fully informed decision to refuse consent to medical procedures necessary to save her life, coupled with a denial that a blood transfusion was necessary to save her life.
(4) That, if Ms. K’s baby’s constitutional rights included the right to be nurtured and reared by Ms. K, such right did not entitle the plaintiffs to override her autonomous refusal of medical treatment as a competent adult.
(5) That the ex parte order having been made without notice to Ms. K, the plaintiffs committed an assault and trespass to her person in administering the blood transfusion in reliance on it.
(6) That Ms. K was entitled to refuse all or any medical treatment proposed by the plaintiffs by virtue of Article 40.1, Article 40.3.1 and Article 40.3.2 and Article 44.2.1 of the Constitution and articles 8 and 9 of the Convention.
(7) That the plaintiffs were in breach of Ms. K’s rights under article 3 and article 14 of the Convention.
In addition to seeking various declarations as to her rights, including her constitutional right to refuse medical treatment, Ms. K counterclaimed for the following reliefs:
(i) a declaration that the plaintiffs acted in violation of Article 40.3.1 and Article 40.3.2 of the Constitution in purporting to proceed against Ms. K by way of ex parte application for an order authorising violation of her bodily integrity and autonomy when she was and is a competent adult; and
(ii) a declaration that the actions of the plaintiffs in applying for the ex parte order and in proceeding to transfuse Ms. K against her will were incompatible with the Convention;
(iii) damages for assault, trespass to the person and breach of constitutional rights; and
(iv) damages for breach of Ms. K’s rights under the Convention pursuant to s. 3(2) of the European Convention on Human Rights Act, 2003 (the Act of 2003).
The defence delivered by the Attorney General on 26th February, 2007 underscored his limited role. While he was a defendant to the plaintiff’s claim, no allegation was made against any organ of the State by the plaintiffs and no relief, other than costs, was claimed. He was not a party to Ms. K’s counterclaim. He was a stranger to the factual issues which arose between the plaintiffs and Ms. K. He had not been on notice of, and was a stranger to, the making of the ex parte order. Apart from pleading by way of preliminary objection that the issues raised in the statement of claim were moot and ought not be determined by the court, although acknowledging that the issues raised by Ms. K on her counterclaim as to whether or not her constitutional rights were infringed as a result of the administration of the blood transfusion remain to be determined, the Attorney General pleaded to the matters raised on the statement of claim in an abstract manner. While the Attorney General did not participate in the evidential aspects of the hearing, the transcripts of evidence were furnished to him and his counsel participated in the closing submissions and gave considerable assistance to the court.
As already outlined, in her defence and counterclaim Ms. K impugned the validity of the ex parte order on the basis that it was made without notice to her and in contravention of her constitutional and Convention rights. At the hearing it was also alleged that it was procured on the basis of material non-disclosure. While dealing with the process, I think it is important to record that no application was made to discharge or vary the order pursuant to the liberty to apply contained in it, or under O. 52, r. 3 of the Rules prior to the delivery of the defence and counterclaim. Moreover, it has not been appealed to the Supreme Court although, in reality, there was no opportunity to appeal prior to the administration of the blood transfusion. The significance of the existence of the order is that it is an impediment to the prosecution of Ms. K’s claim to damages. In that regard, the case made on her behalf is that it is prosecutable on the basis that (1) the authority given to the plaintiffs by the order was exceeded, assuming it is valid, or (2) the order was a nullity and of no effect or should be set aside.
II. Identifying the core legal issue
Counsel for the plaintiffs emphasised two matters which are not at issue.
First he accepted that there is no question but that the right of patient autonomy is embraced by the State’s obligation to protect the “person” in Article 40.3.2 of the Constitution and he submitted that the right is also a dimension of the unenumerated right to bodily integrity as recognised in Ryan v. Attorney General [1965] I.R. 287. It follows, it was acknowledged, that a competent adult with full capacity has an absolute right to decline medical treatment, subject to one qualification. However, counsel for the plaintiffs distinguished between competence generally, on the one hand, and the lack of capacity to make a particular decision, such as a decision as to accepting or refusing medical treatment, on the other hand. That such distinction exists is undoubtedly the case, and that was recognised by counsel for Ms. K, properly in my view. The qualification, which is implicit in the case made on behalf of the plaintiffs, is that the absoluteness of the recognised right to decline medical treatment may be watered down by a competing constitutional interest, whether the concept of the common good or the constitutionally-protected right of a third party, of sufficient weight to override the right.
In the light of the decision of the Supreme Court in In re a Ward of Court (withholding medical treatment) (No. 2) [1996] 2 I.R. 79, it could not be argued that a competent adult is not free to decline medical treatment. While that case concerned the withholding of medical treatment in the case of a person who had been found to be incompetent, the foundation of the ratio decidendi is the Court’s exposition of the position of a competent adult. That is succinctly encapsulated and explained in the following passage from the judgment of Denham J. (at p. 156):
          “Medical treatment may not be given to an adult person of full capacity without his or her consent. There are a few rare exceptions to this e.g. in regard to contagious diseases or in a medical emergency where the patient is unable to communicate. This right arises out of civil, criminal and constitutional law. If medical treatment is given without consent it may be a trespass against the person in civil law, a battery in criminal law, and a breach of the individual’s constitutional rights. The consent which is given by an adult of full capacity is a matter of choice. It is not necessarily a decision based on medical considerations. Thus, medical treatment may be refused for other than medical reasons, or reasons most citizens would regard as rational, but the person of full age and capacity may make the decision for their own reasons.
          If the patient is a minor the consent may be given on their behalf by parents or guardians. If the patient is incapacitated by reason other than age, then the issue of capacity to consent arises. In this instance, where the patient is a ward of court, the court makes the decision.”
Later, in the context of analysing Article 40.3 of the Constitution, Denham J. stated (at p. 160):
          “The right to life is the pre-eminent personal right. The State has guaranteed in its laws to respect this right. The respect is absolute. This right refers to all lives – all lives are respected for the benefit of the individual and for the common good. The State’s respect for the life of the individual encompasses the right of the individual to, for example, refuse a blood transfusion for religious reasons. In the recognition of the individual’s autonomy, life is respected.”
The substance of the foregoing dicta is incorporated in “A Guide to Ethical Conduct and Behaviour” issued by the Medical Council (6th edition, 2004). Paragraph 17.1 explicitly provides that a competent adult patient has the right to refuse treatment. It further provides that, while the decision must be respected, the assessment of competence and the discussion on consent should be carried out in conjunction with a senior colleague. Paragraph 18.4 deals with the special situation of emergency treatment and provides that in an emergency when consent cannot be obtained, for example, where the patient is unconscious, the doctor may provide the treatment that is necessary to safeguard the patient’s life or health.
The second matter which counsel for the plaintiffs accepted was not in doubt was that Ms. K’s right to the free profession and practice of her religion is protected by Article 44 of the Constitution. A plea in the statement of claim that Ms. K’s decision came within the “public order and morality” exception to Article 44.2.1 was not pursued. Indeed, I understood counsel for the plaintiff to accept that certain tenets of the Jehovah’s Witness faith, which he suggested were factors to be taken into account in determining Ms. K’s capacity, principally, disfellowship and disassociation, are protected by Article 44, in the same way as such practices are protected by the First Amendment of the United States Constitution, as was held by the US Court of Appeals for the Ninth District in Paul v. Watch Tower Bible and Tract Society of New York, Inc. 819 F. 2d 875.
It was acknowledged by the plaintiffs in making the ex parte application to Abbott J. on September, 2006 that Ms. K was not non compos mentis on 21st September, 2006 and that position has been maintained by the plaintiffs. Therefore, the position of Ms. K differs from that of the notice party whose position was considered by this Court (Finnegan P.) in J.M. v. St. Vincent’s Hospital [2003] 1 I.R. 321. There the notice party, a patient who was critically ill and required immediate blood transfusions and a liver transplant, was in a coma when the application was made by her husband. She was admitted to wardship and Finnegan P. made an order directing the hospital to provide appropriate medical treatment, including a liver transplant and blood transfusion, in exercise of the court’s parens patriae jurisdiction. Following the decision of the Supreme Court in In re a Ward of Court, he stated that the approach to be adopted is that the court should consider the right of the person to determine for herself provided she was competent to make such a decision.
What is significant about that decision for present purposes is the manner in which it was made. It is clear from the ex tempore judgment of Finnegan P. that he was satisfied that the matter was one of great urgency. Because of the urgency he allowed the applicant to proceed on foot of a draft plenary summons and he took oral evidence from the applicant and one of the respondents, whom I assume was her clinician. In this case, because of the emergency, a similar approach, which I consider to be in line with usual practice, was adopted on the ex parte application. Finnegan P. decided that, in view of the urgency, it was inappropriate that delay should be incurred by compliance with the statutory provisions of the Lunacy Regulation Act, 1871. It was for that reason that he exercised his parens patriae jurisdiction. The notice party was not represented, but in that respect the case differs fundamentally from this case because, in the circumstances which prevailed there, the notice party was found to be non compos mentis.
The core issue in this case is whether the court was entitled to intervene and make the ex parte order authorising that Ms. K, a competent adult, be transfused notwithstanding that she had expressly refused a blood transfusion. Counsel for the plaintiffs submitted that the issue raised gives rise to two questions.
The first question is whether Ms. K had given a legally valid refusal of treatment. It is common case that for a refusal of treatment to be valid it must be based on the appropriate treatment information, be made by a person with the necessary capacity and be voluntary. The answer in this case turns on Ms. K’s capacity to make a decision to refuse at the time she articulated the refusal. That question, which, for the sake of brevity, I will refer to as the “capacity question”, was posited by counsel for the plaintiffs in terms whether the Hospital was entitled to consider that Ms. K had not given a legally valid refusal. In the context of the capacity question, I will address whether the issue of voluntariness arises. I did not understand there to be any real controversy as to the treatment information which was given to Ms. K.
The second question is whether, if Ms. K had capacity to make a valid decision to refuse a blood transfusion, the court was, and is, entitled to have regard to her baby’s constitutional rights and find that, when balanced against Ms. K’s constitutional rights to autonomy, self determination, and the free practice of her religion, the baby’s rights outweighed Ms. K’s rights so as to entitle the judicial arm of the State to intervene. For the sake of brevity, I will refer to this question as the “balancing of rights” question.
III. Order in which the question should be determined
As will be demonstrated later, both the capacity and the balancing of rights questions were raised before Abbott J. made the ex parte order, although he made the order authorising the blood transfusion exclusively on the basis of the submissions which had been made to him on the balancing of rights question.
It is common case that the capacity question falls to be considered and determined first. The balancing of rights question only arises in the event that the court were to find that Ms. K’s refusal of a blood transfusion was a valid refusal. Indeed, whether the balancing of rights question should be considered at all was put in controversy on behalf of the Attorney General.
In essence, the argument made on behalf of the plaintiffs was that Ms. K’s right to refuse medical treatment was not an absolute one, whether it derived from the protection of the person in Article 40.3.2 (and the assumption that Ms. K had validly waived her constitutional right to life) or the protection of freedom of conscience and religion in Article 44.2.1. It is to be balanced against the competing Article 41 and Article 42 rights of her baby to the company, care and parentage of his parents within a family unit. It was submitted that the court was entitled to conclude that the competing interests of Ms. K’s son outweighed her constitutional right. That proposition was advanced on the basis that, in the light of the Hospital’s knowledge at the time, the death of Ms. K would result in the abandonment of her baby. Counsel for the plaintiffs cited the judgments of the Supreme Court in North Western Health Board v. H.W. [2001] 3 I.R. 622, (the PKU Test case) which address the nature of the conduct on the part of a parent and the consequences for the parent’s child which may justify intervention by the State in exceptional circumstances as envisaged by Article 42.5.
Ms. K’s baby was born before the emergency occurred, so that no issue arises under Article 40.3.3, wherein the State acknowledges the right to life of the unborn. Ms. K’s decision to refuse treatment did not in any way jeopardise her baby’s right to life, so that the right to life is not a factor in the balancing of rights equation, if it arises.
The position advanced on behalf of the Attorney General was to recognise in principle that, if Ms. K had capacity to refuse and give a valid refusal, the issue as to whether any other constitutional right might negate the effect of such decision would arise. It was also recognised that Ms. K’s baby, although not an Irish citizen, enjoyed the constitutional protections afforded by the Constitution, including the family rights under Article 41 and the individual personal rights protected by Article 40.3. It was accepted that the baby had a right to have the nurture and support of his mother. It was made clear that the Attorney General was not submitting that such a right would or should have superior constitutional status to the right of the mother to refuse medical treatment, so as to override the mother’s right in this case, the baby’s right to life not being in issue. However, counsel for the Attorney General advocated restraint in addressing the balancing of rights question. He did so for the pragmatic reason that it is not grounded in reality, in that it became clear during the course of the hearing that Ms. K’s husband, the father of the baby, was in the jurisdiction on 21st September, 2006 and, in fact, was in the Hospital at around 3 p.m. that afternoon. Therefore, the reality was that, in the unfortunate event of Ms. K’s death, her baby was not going to be left without a parent in the State. At the time the hearing commenced, he was just over a year old and was living in the State with both his parents.
The scheme of the remainder of this judgment is as follows:
(1) The law on the capacity question will be considered in section IV.
(2) The ex parte application and the determination made by Abbott J. will be outlined in detail in section V.
(3) The evidence relevant to the capacity question will be outlined and considered in section VI.
(4) The application of the law on the capacity question to the facts will be dealt with in section VII.
(5) Whether the balance of rights question should be considered will be addressed in section VIII.
(6) The issues raised as to the manner in which the ex parte order was sought and the reliefs claimed in respect of it will be considered in section IX.
(7) The form of order will be dealt with in section X.
(8) Some measures which would assist medical and legal personnel in dealing with the type of emergency which arose in this case will be considered in section XI.
IV. Capacity question: the law
Irish jurisprudence
I have already alluded to the novelty of the core issue in this jurisdiction. Specifically, an Irish court has not had to consider previously how capacity to refuse consent to medical treatment on the part of an adult should be tested. The decisions of the High Court in Geoghegan v. Harris [2003] 3 I.R. 356 and the Supreme Court in Fitzpatrick v. White [2007] IESC 51, in which, in the context of claims for damages for medical negligence, the test to be adopted by the court as to what risks ought to be disclosed to a patient before he or she consents to a medical procedure so that the patient makes a real choice, in my view, are not apposite. I appreciate that those decisions were cited in the written submissions on behalf of Ms. K for the purpose of delineating the information which the treating clinician should give to a patient in Ms. K’s position, which it was suggested was the following:
(a) that she was bleeding,
(b) that there was a risk that she would die as a result of that blood loss,
(c) that she required blood or blood products if she was to avert that risk of death, and
(d) that there was a range of blood products that she might wish to consider in the event that she was refusing whole blood and/or “major” blood factors.
Authorities from other jurisdictions
There are authorities from other jurisdictions which afford guidance on how capacity is to be tested in relation to decisions to refuse medical treatment in both elective and emergency situations where the treatment is considered to be necessary to save the patient’s life. I propose considering such of those authorities those authorities as I consider relevant to the issues which arise in this case. I will consider them in chronological order, because I believe that the jurisprudence has become established over the years as the courts have had more experience in dealing with these difficult issues. A number of cases involving patients who were minors were cited in argument. However, I have not found those cases to be of assistance because they raise distinct issues which do not arise in cases involving competent adult patients.
Malette v. Schulman 72 O.R. (2d) 417
While, unlike the situation which arose in the Hospital on 21st September, 2006, the Court of Appeal of Ontario was not concerned with the capacity of a conscious adult patient to refuse a blood transfusion in Malette v. Schulman, its decision has influenced courts in the United Kingdom which have considered the capacity question. The plaintiff, Mrs. Malette, was severely injured in a car accident and brought to hospital unconscious. The defendant, Dr. Schulman, having examined her, concluded that a blood transfusion was indicated. A nurse found what is commonly called an advance directive card in her purse which was signed by her and on which “as one of Jehovah’s Witnesses with firm religious convictions” she requested that no blood or blood products be administered to her “under any circumstances”, stating that she fully realised the implications of that position but had resolutely decided to obey the Bible command. The card went on to state that she had no religious objection to the use of non-blood alternatives, examples of which were given. Notwithstanding the advance directive, Dr. Schulman, being of opinion that a blood transfusion was necessary to save Mrs. Malette’s life and health, administered transfusions to her. At first instance she was awarded $20,000 by way of damages for battery in her action for damages against Dr. Schulman.
That decision was appealed. It is clear from the judgment of Robins J.A. on the appeal that, in substance, the law on the right of a competent adult patient to reject a blood transfusion applicable in Ontario at the time corresponds with the current law in this jurisdiction. A competent adult was generally entitled to reject specific or all treatment or to select an alternative form of treatment, even if the decision might entail risks as serious as death and might appear to be mistaken in the eyes of the medical profession or of the community (per Robins J.A. at p. 328). The emergency situation, in which a patient is incapable of either giving or withholding any consent, was an exception to the general rule.
An argument advanced on behalf of Dr. Schulman was that, unless a doctor can obtain the patient’s informed refusal of blood transfusions, he need not follow the instructions provided in the advance directive card, because nothing short of a conscious, contemporaneous decision made after having been fully informed by the doctor of the risk of refusing blood in specific circumstances would suffice to eliminate the doctor’s authority to administer emergency treatment or relieve the doctor of his obligation to treat the emergency patient as he would any other. Robins J.A. rejected that argument. Having pointed to the fact that in the particular emergency circumstances the doctor could not inform the patient of the risks involved in her prior decision, so that, whatever the doctor’s obligation to provide the information needed to make an informed choice might be in other doctor-patient relationships, he could not be in breach of any such duty in the circumstances of his relationship with Mrs. Malette, he went on to say (at p. 336):
          “The patient manifestly made the decision on the basis of her religious convictions. It is not for the doctor to second-guess the reasonableness of the decision or to pass judgment on the religious principles which motivated it. The fact that he had no opportunity to offer medical advice cannot nullify instructions plainly intended to govern in circumstances where such advice is not possible. Unless the doctor had reason to believe that the instructions in the Jehovah’s Witness card were not valid instructions in the sense that they did not truly represent the patient’s wishes, in my opinion he was obliged to honour them. He had no authorisation under the emergency doctrine to override the patient’s wishes. In my opinion, she was entitled to reject in advance of an emergency a medical procedure inimical to her religious values.”
On the question whether Dr. Schulman factually had reason to believe the instructions were not valid, the Appeal Court upheld the trial judge’s finding that the doctor’s doubt about the validity of the card was not rationally founded on evidence before him. The Court of Appeal also upheld the trial judge’s finding that there was no basis in evidence to indicate that the card did not represent the current intention and instruction of Mrs. Malette, Robins J.A. observing (at p. 337) that there was nothing to give credence to or provide support for the speculative inferences implicit in questions as to the current strength of Mrs. Malette’s religious beliefs, or as to the circumstances under which the card was signed, or her state of mind at the time. Robins J.A. continued:
          “In short, the card on its face set forth unqualified instructions applicable to the circumstances presented by this emergency. In the absence of any evidence to the contrary, those instructions should be taken as validly representing the patient’s wishes not to be transfused. If, of course, there were evidence to the contrary – evidence which cast doubt on whether the card was a true expression of the patient’s wishes – the doctor, in my opinion, would be entitled to proceed as he would in the usual emergency case.
There being no such contradictory evidence in relation to Mrs. Malette’s wishes, the Court of Appeal upheld the finding that the doctor’s administration of the transfusion constituted a battery and affirmed the award of damages.
By analogy to the approach adopted by the Court of Appeal, in principle, the instructions of a patient not to transfuse given verbally to a doctor, even in an emergency, should be followed unless there is evidence to cast doubt on the capacity of the patient to give instructions at the time. Nonetheless, in the light of the submissions made by counsel for the plaintiffs, it is important to reiterate that the facts which gave rise to the decision in Malette v. Schulman are very different from the facts in this case. It is clear from the evidence in this case that members of the Jehovah’s Witness faith in this jurisdiction do carry advance directive cards. Although she professed to have one, Ms. K did not produce an advance directive in card form or any other form to the Hospital or to any of the other hospitals she attended in this country. The issue of the validity of an advance directive card or its efficacy in the event of an emergency does not arise in this case. It is for another day, as are the concerns voiced by counsel for the plaintiffs as to the approach adopted by the Court of Appeal in Malette v. Schulman. In particular, the suggestion that the annual advance directive renewal process at a service in Kingdom Hall, coupled with risk of disfellowship or disassociation, may influence a decision of a Jehovah’s Witness in relation to blood transfusion and that the Canadian Court’s approach did not have regard to the propensity for a change of mind, for the reasons mentioned later in the context of the concept of voluntariness, in my view, are not matters which should in any way influence the decision of the court in this case.
Re T (adult: refusal of medical treatment) [1992] 4 All E.R. 649
Turning to the United Kingdom authorities, the starting point for the decision of the Court of Appeal in Re T was the same as the starting point for the Supreme Court in In re a Ward of Court and the starting point for the court of Appeal of Ontario in Malette v. Schulman: “an adult patient who … suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered” (per Lord Donaldson M.R. at p. 652). Lord Donaldson added that the only possible qualification was a case in which the choice might lead to the death of a viable foetus, but he left that question over. As will be clear from what I will say later, the Court of Appeal subsequently decided that no such qualification exists.
Re T concerned the refusal of treatment by an adult Jehovah’s Witness and it was a case in which the question of capacity to refuse and the validity of the refusal arose. Miss T, who was 34 weeks pregnant, was admitted to hospital following a car accident. The possibility of her requiring a blood transfusion arose. She had been brought up by her mother, who was a Jehovah’s Witness, but she was not herself a member of that faith. After a private conversation with her mother, Miss T told the staff nurse that she did not want a blood transfusion for religious reasons. When she went into labour it was decided that her delivery should be by Caesarean section. After being alone with her mother, Miss T again told medical staff that she did not want a blood transfusion. She was informed that other solutions to expand the blood could be used and that blood transfusions were not often necessary after a Caesarean section. She then, as it is put in the head note, “blindly” signed a form of refusal of consent to blood transfusions but it was not explained to her that it might be necessary to give her a blood transfusion to save her life. After undergoing an emergency Caesarean operation her condition deteriorated and a blood transfusion was medically indicated. However, the Consultant Anaesthetist felt inhibited from administering the transfusion in the light of her expressed wishes. She was put on a ventilator and paralysing drugs were administered.
Miss T’s father and her boyfriend applied to court for assistance. The application was heard ex parte. The judge, Ward J., took evidence over the telephone from a doctor who had spoken to Miss T in the maternity unit after she had stated for the second time that she did not wish to have a blood transfusion and before she signed the refusal form. Ward J. recorded that he was told by the doctor that Miss T was under the influence of a narcotic drug, pethidine. Her demeanour was drowsy and detached. He expressed the opinion that she was not fully compos mentis; that she was not fully rational in making an assessment of her medical condition, being unaware how critical her condition was; and that she was not fully rational at the time of signing the refusal. Ward J. granted interlocutory relief by way of a declaration that it would not be unlawful for the hospital to administer a blood transfusion to Miss T despite the absence of her consent. Thereupon, Miss T was transfused.
Two days later there was a full hearing before Ward J. at which the evidence of the doctors and the nurses involved in the care of Miss T was heard. Lord Donaldson summarised his findings as follows (at p. 659):
          “In essence Ward J. found that the physical and mental state of Miss T on the Sunday afternoon and evening were such that, although she was undoubtedly under the influence of her mother, she was capable of reaching and did reach a decision as to her own treatment. However, he went on to find that Miss T was lulled into a sense of false security by hospital staff and that she was misinformed as to the availability and effectiveness of alternative procedures. Against this background and his assessment of the shallowness of Miss T’s acceptance of the beliefs of the Jehovah’s Witnesses, he construed Miss T’s refusal of treatment by blood transfusion as not extending to the question of whether or not she would receive transfusions in the extreme situation which had arisen. In other words he concluded that, as to that, Miss T had neither consented nor refused. As Miss T was no longer able to express any view, it was a classic ‘emergency’ situation in which it was lawful for the doctors to treat her in whatever way they considered, in the exercise of their clinical judgment, to be in her best interests.”
Miss T, acting by the Official Solicitor as her guardian ad litem, appealed. The Court of Appeal dismissed the appeal but without approving of the findings of fact made by Ward J., Lord Donaldson stating that there was abundant evidence which would have justified the Court of Appeal substituting findings that Miss T was not in a physical or mental condition which enabled her to reach a decision binding on the medical authorities and, even if she was, the influence of her mother was such as to vitiate the decision she expressed. The significance of the decision of the Court of Appeal is that, for the guidance of hospital authorities and the medical profession, Lord Donaldson in his judgment set out the principles by which the issue of the validity of an adult patient’s refusal is to be determined. He summarised the principles at the end of his judgment (at p. 664).
The first principle, that, prima facia, every adult has the right and capacity to decide whether or not he will accept medical treatment, even if the refusal may risk permanent injury to his health or even lead to premature death, and whether the reasons for refusal are rational or irrational, unknown or even non-existent, mirrors the dicta of the Supreme Court in Re a Ward of Court. However, on the question of capacity, he stated that the presumption of capacity to decide, which stems from the fact that the patient is an adult, is rebuttable and continued:
          “(2) An adult patient may be deprived of his capacity to decide either by long-term mental incapacity or retarded development or by temporary factors such as unconsciousness or confusion or the effects of fatigue, shock, pain or drugs.
          (3) If an adult patient did not have capacity to decide at the time of the purported refusal and still does not have that capacity, it is the duty of the doctors to treat him in whatever way they consider, in exercise of their clinical judgment, to be in his best interests.
          (4) Doctors faced with the refusal of consent have to give very careful and detailed consideration to what was the patient’s capacity to decide at the time when the decision was made. It may not be a case of capacity or no capacity. It may be a case of reduced capacity. What matters is whether at that time the patient’s capacity was reduced below the level needed in the case of a refusal of that importance, for refusals can vary in importance. Some may involve a risk to life or of irreparable damage to health. Others may not.
          (5) In some cases doctors will not only have to consider the capacity of the patient to refuse treatment but also whether the refusal has been vitiated because it resulted not from the patient’s will, but from the will of others …
          (6) In all cases doctors will need to consider the true scope and basis of the refusal. Was it intended to apply in the circumstances which have arisen? Was it based upon assumptions which in the event have not been realised? A refusal is only effective within its true scope and is vitiated if it is based upon false assumptions.
          (7) …
          (8) In cases of doubt as to the effect of a purported refusal of treatment, where failure to treat threatens the patient’s life or threatens irreparable damage to his health, doctors and health authorities should not hesitate to apply to the courts for assistance.”
Before embarking on that analysis, Lord Donaldson pointed to the conflict of principle which arises in the case of a refusal of consent to treatment between the interest of the patient and the interest of society. The patient’s interest is his right to self determination – to live his own life as he wishes, even if it will damage his health or lead to premature death. Society’s interest is in upholding the concept that all human life is sacred and that it should be preserved if at all possible. Having stated that it is well established that in the ultimate the right of the individual is paramount, he continued (at p. 661):
          “But this merely shifts the problem where the conflict occurs and calls for a very careful examination of whether, and if so the way in which, the individual is exercising that right. In case of doubt, that doubt falls to be resolved in favour of the preservation of life, for if the individual is to override the public interest he must do so in clear terms.”
Counsel for Miss K took issue with the proposition enunciated by Lord Donaldson, which is reflected in the fourth principle, that the patient’s capacity should be commensurate with the gravity of the decision which he purports to make, suggesting instead that the level of capacity required should be measured against the nature of the decision, that is to say, its complexity, rather than its consequences. It was also submitted that the proposition may have the effect of reversing the burden of proof of capacity. In my view, Lord Donaldson, who clearly recognised the presumption in favour of capacity, was saying no more than that, where the patient’s choice is of death over life, the question for the doctor is whether the patient has the capacity at the time to make a decision of that gravity. The principle enjoins the doctor to view the issue by reference to the gravity of the outcome, in much the same way as the High Court of England and Wales (Munby J.) in H.E. v. A Hospital NHS Trust [2003] E.W.H.C. 1017 (Fam), in a case involving an issue as to the existence and continued validity and applicability of an advance directive, held that where life is at stake the evidence must be scrutinised with special care. Clear and convincing proof is required. Similarly, the Supreme Court in In re a Ward of Court upheld the approach adopted by Lynch J. at first instance (p. 92) in requiring that “the evidence should be clear and convincing having regard to the gravity of the matter for decision …” (c.f. Hamilton C.J. (at p. 127)).
Re C (adult: refusal of medical treatment) [1994] 1 All E.R. 819
There was consensus among the parties that the test for capacity adumbrated in Re C is the appropriate test to assess capacity or lack of it in the context of a refusal of medical treatment. Counsel for Ms. K also submitted that the judgment is instructive as to how the test should be applied having regard to the manner in which it was applied on the facts of the case.
The facts were that C, a 68 year old patient suffering from paranoid schizophrenia, who was being detained in Broadmoor, developed gangrene in a foot. He was removed to a general hospital, where the consultant surgeon diagnosed that he was likely to die imminently if his leg was not amputated below the knee. C refused to consider an amputation. The hospital authorities considered whether the operation could be performed without C’s consent and made arrangements for a solicitor to see him. Treatment with antibiotics and conservative surgery averted the immediate threat of imminent death. However, the hospital refused to give an undertaking to C’s solicitor that, in recognition of his repeated refusals, it would not amputate in any future circumstances. C applied for an injunction restraining the hospital from carrying out an amputation without his express consent. The application was successful. Thorpe J. held that the High Court, exercising its inherent jurisdiction, could direct by way of injunction or declaration that an individual was capable of refusing or consenting to medical treatment, including future medical treatment.
On the question of the definition or test of capacity which enables an individual to refuse treatment Thorpe J. stated as follows (at p. 824):
          “I think that the question to be decided is whether it has been established that C’s capacity is so reduced by his chronic mental illness that he does not sufficiently understand the nature, purpose and effects of the proffered amputation.

          I consider helpful Dr. Eastman’s analysis of the decision-making process into three stages: first, comprehending and retaining treatment information, second, believing it and, third, weighing it in the balance to arrive at choice.”
In applying that test to his findings on the evidence, Thorpe J. stated that he was completely satisfied that the presumption that C had the right of self determination had not been displaced. He continued (at p. 824):
          “Although his general capacity is impaired by schizophrenia, it has not been established that he does not sufficiently understand the nature, purpose and effects of the treatment he refuses. Indeed, I am satisfied that he has understood and retained the relevant treatment information, that in his own way he believes it, and that in the same fashion he has arrived at a clear choice.”
Thorpe J. arrived at his decision on the facts, finding that C had passed all three elements of the test, having heard oral evidence from three consultant psychiatrists and from C. As his analysis of, and findings on, the psychiatric evidence was crucial to his decision, I do not attach the weight to the application of the test to the facts which counsel for Ms. K urged. The facts there were unusual and, in the final analysis, the case was decided on how the judge viewed the totality of the evidence. In particular, in finding that C passed the second element of the test, that he believed the treatment information, Thorpe J. specifically found that C believed it “in his own way”.
It is, I think, worth noting the circumstances in which Thorpe J. decided the C case, which are in stark contrast to the circumstances in which Abbott J. had to determine the ex parte application. C was told of the necessity for an amputation on 15th September, 1993 and refused consent for the procedure. By the time the originating summons was issued on 4th October, the emergency had subsided. Nonetheless, there was a full inter partes hearing almost immediately – on 8th and 9th October. The Official Solicitor appeared as amicus curiae. Judgment was delivered on 14th October. The outcome, in effect, gave effect to an oral advance directive by C as the court order extended into the future beyond the prevailing circumstances when it was made.
Counsel for the Attorney General accepted that it is part of the State’s duty to respect and vindicate rights under Article 40.3 to ensure that a person refusing life-saving treatment has the necessary capacity. He indicated that the Attorney General does not disagree that the test formulated in the C case is the correct test. However, counsel emphasised the panoply of constitutional rights and duties which form the backdrop against which the test must be applied: the rights to life, bodily integrity, privacy, self-determination and freedom to practice religion; and the State’s corresponding duties. He also submitted that the right of a new-born baby to be reared by his parents is also part of that backdrop and the position of the new-born baby is highly relevant in assessing capacity in the case of Ms. K.
It is convenient at this juncture, to analyse a submission made by counsel for Ms. K in relation to the application of the C case test in this type of case. It was submitted that, in assessing capacity to refuse medical treatment where the refusal is on religious grounds, the law must have regard to the subjective views of the patient whose beliefs are protected by Article 44. In relation to the application of the second element of the C case test, the requirement of belief in the treatment information, to a case where a patient’s refusal of a blood transfusion is based on a tenet of the patient’s religious belief it is immaterial, it was submitted, whether the patient believes that the acceptance of a blood transfusion would be efficacious or not to save his or her life. Otherwise, it was argued, a rational scientific analysis would supplant faith.
In my view, that submission is not correct. What the law, as set out in the C case, requires is that the patient be given the relevant information about his or her condition, the proposed treatment, any alternative treatment available and the likely outcome of adopting such options as are open to the patient. In a case in which the doctor considers that a blood transfusion is necessary to save the patient’s life and that without it the patient will die, that is the information which the patient has to be given, as counsel for Ms. K acknowledged. But it is also the information which the patient has to assimilate, has to believe and has to factor into the decision making process. Article 40.3 protects life and requires that, as does the common law. If the patient is not given the relevant information or, alternatively, fails to assimilate it and believe it, the first two elements of the C case test are not fulfilled. If the patient does assimilate and believe the information but nonetheless rejects the treatment on the basis of a religious conviction, for example, adherence to a scriptural proscription on accepting the treatment, he or she has passed the C case test as to capacity notwithstanding that the doctor and non-believers may consider the basis of his or her refusal to be wholly irrational. Article 44, which protects the patient’s religious belief, requires that, as does the recognition at common law of his right to self-determination.
I consider that a fundamental fault line in the case made on behalf of Ms. K is the argument that the Hospital personnel who were treating her and were confronted with the issue whether she had given a valid refusal should have accepted her refusal as being based on religious grounds without considering her capacity by reference to her understanding of her medical condition and, in particular, whether she understood and believed that a blood transfusion was necessary to save her life. The approach advocated on behalf of Ms. K effectively elides the second element of the C case test.
It also ignores the following guidance given by Butler Sloss L.J. in Re B (Adult: Refusal of Treatment) [2002] 2 All E.R. 449 (at para. 100, p. 474) quoted in the written submission submitted on behalf of Ms. K, and also referred to in the written submission on behalf of the Attorney General:
          “If there are difficulties in deciding whether the patient has sufficient mental capacity, particularly if the refusal may have grave consequences for the patient, it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences. The view of the patient may reflect a difference in values rather than an absence of competence and the assessment of capacity should be approached with this firmly in mind. The doctors must not allow their emotional reaction to or strong disagreement with the decision of the patient to cloud their judgment in answering the primary question whether the patient has the mental capacity to make the decision.”
Re M.B. (Medical Treatment) [1997] 2 F.L.R. 426.
The C case test was applied by the Court of Appeal in Re M.B. The patient in that case was advised to have a Caesarean section because the foetus was in breech position and a vaginal delivery posed a serious risk of death or brain damage to the baby. She agreed and signed a consent form. However, when successive attempts were made to carry out the operation she panicked at the last moment, because she had needle phobia, and withdrew her consent. In the emergency, the health authority applied to the High Court for, and was granted, a declaration that it would lawful to operate on her, using force if necessary. That night the Court of Appeal dismissed the patient’s appeal. In a reserved judgment delivered later, the Court of Appeal addressed the question of capacity, drawing on the judgment of Lord Donaldson in Re T and the judgment of Thorpe J. in Re C. In her judgment, Butler-Sloss L.J. reiterated (at p. 436) that a competent woman who has capacity to decide may, “for religious reasons, other reasons, for rational or irrational reasons, or for no reason at all”, choose not to have medical intervention even though the consequence may be her own death or, addressing the issue which was left over in Re T, the death or serious handicap of the child she bears. She went on to consider the meaning of irrationality in this context in the following passage (at p. 437):
          “Irrationality is here used to connote a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question that is to be decided could arrive at it. As Kennedy and Grubb Medical Law … point out, it might be otherwise if a decision is based on a misperception of reality (e.g. the blood is poisoned because it is red). Such a misperception will be more readily accepted to be a disorder of the mind. Although it might be thought that irrationality sits uneasily with competence to decide, panic, indecisiveness and irrationality in themselves do not as such amount to incompetence but they may be symptoms or evidence of incompetence. The graver the consequences of the decision, commensurately greater the level of competence is required to take the decision …”
That passage highlights the distinction which the fault line in Ms. K’s argument overlooks. It distinguishes irrationality of the decision, on the one hand, from misunderstanding or misperception of the information which is material to the decision-making process, for example information as to the likely consequences of having or not having the treatment proffered, on the other hand. The proper application of the three step C case test, in my view, should obviate a blurring of the distinction, but the evidence of experts does not always do so, as will be illustrated later.
On the facts, Butler-Sloss L.J. found that M.B. was incapable of making a decision at all, at that moment she was suffering from an impairment of her mental functioning which disabled her, and she was temporarily incompetent, so that the doctors were free to administer an anaesthetic if that was in her best interests.
At the end of her judgment Butler-Sloss L.J. set out guidelines on the practice to be followed when the medical profession consider it necessary to seek assistance from the courts, which were elaborated on in the next case considered.
St. George’s Healthcare and N.H.S. Trust v. S [1998] 3 W.L.R. 936
This is the final United Kingdom authority on the capacity question which I propose to consider in detail. It is an authority on which reliance was placed by counsel for Ms. K. It was the decision of the Court of Appeal.
The facts were that S, who was 36 weeks pregnant and had not previously sought ante-natal care, attended her local NHS practice and was diagnosed as suffering from pre-eclampsia and advised of the need for bed rest with an induced delivery without which her life and that of her unborn child would be in danger. She understood the risks but rejected the advice since she wanted a natural delivery. A social worker approved under the Mental Health Act, 1983 and two doctors repeated the advice but she still refused to accept it. The social worker applied under that Act for her admission to a mental hospital for assessment and the two doctors signed the necessary recommendations. That evening she was admitted to a mental hospital against her will and shortly afterwards transferred to a general hospital, St. George’s Hospital, against her will, when she continued to refuse to consent to treatment. The next day at lunch time the hospital authorities applied ex parte to a judge in chambers who granted a declaration, which dispensed with the applicant’s consent to treatment. The hospital carried out a Caesarean section and the applicant was delivered of a baby girl. A few days later she was returned to the mental hospital. Her detention under the Act was subsequently terminated and she discharged herself from hospital. Her appeal against the declaration and her application for judicial review of the decisions of the social worker for her admission to a mental hospital and of the hospital authorities to detain her were successful. The judgment of the court, of which Butler-Sloss L.J. was a member, was delivered by Judge L.J.
What emerges clearly from the judgment of the Court of Appeal is that, prior to the moving of the ex parte application, the psychiatrist who was assessing S was of the view that her “capacity” for consent “was intact” and she apprised the counsel moving the application accordingly, although she added that “it could be affected by a mental/psychiatric state”. No evidence whatsoever was tendered at the hearing. The court was told that S had been in labour for 24 hours, which was not the case. The court was told that S had been admitted under the Mental Health Act for assessment of her mental and psychiatric condition, that the assessment was “ongoing” and that only “moderate depression” had been diagnosed. The Court of Appeal recorded that, beyond that, the question of the capacity of S to consent was not addressed. It was suggested before the Court of Appeal by counsel for the hospitals that the topic was not addressed at all because it was assumed throughout the hearing that S was competent. The court was not told that S had already instructed solicitors, which was known to the hospital, or that she or her solicitors were ignorant of the proceedings. The Official Solicitor was not involved. At the time it was not appreciated that S was not lawfully detained at St. George’s Hospital.
The Court of Appeal concluded that S knew perfectly well what she was doing and that there was no sufficient evidence from which to conclude that her competence on that day was in question.
Following In re M.B., the Court of Appeal held that S was entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depended on it.
The Court of Appeal was highly critical of the conduct of the ex parte application and held that S was entitled to have it set aside ex debito justiciae. I will be returning to this aspect of the case later. However, I think it is important to point out, even in the context in which I am considering the decision of the Court of Appeal at this juncture, that in setting aside the order, which opened the way for a claim for damages for trespass by S against St. George’s Hospital, the Court of Appeal was exercising its appellate jurisdiction in relation to the declaratory order.
At the end of the judgment, Judge L.J. set out guidelines for dealing with the type of problem which arose in that case, describing them as an attempt to repeat and expand the advice given in In re M.B. The guidelines envisage an application to court in two situations only. The first is where there is concern about a patient’s competence to consent to or refuse treatment to the extent that, following assessment, there remains a serious doubt about the patient’s competence or the seriousness or complexity of the issues require the involvement of the court. The second arises where a patient has given an advance directive and there is reason to doubt the reliability of the advance directive, for example, where it may sensibly be thought not to apply to the circumstances which have arisen. However, the Court of Appeal recognised that that there may be occasions when the situation is so urgent and the consequences so desperate that it is impracticable to attempt to comply with the guidelines. In my view, the situation which arose when Ms. K suffered a massive haemorrhage and disclosed for the first time that she would not accept a blood transfusion on religious grounds was such a situation.
The C case test in the context of constitutional protections and imperatives
In the authorities from other jurisdictions which I have considered above, the courts were concerned with the formulation of a common law test as to capacity to make a decision to refuse life-saving treatment. A consistent thread in the authorities is a recognition of society’s interest in preserving life if at all possible, notwithstanding that in the ultimate the right of the individual is paramount. But there is also a consistent thread that a court should act with caution where there is a conflict between society’s interest in preserving life and the individual’s right of self-determination. That thread is reflected in the passage from the judgment of Lord Donaldson M.R. in Re T ( at p. 661), which I have quoted earlier, which emphasises that, in case of doubt, “that doubt falls to be resolved in favour of preservation of life, for if the individual is to override the public interest, he must do so in clear terms.”
Counsel for the plaintiffs submitted that in this jurisdiction, where the decision to refuse life-saving treatment amounts to a waiver of the individual’s constitutional right to life guaranteed by Article 40.3.2, the court should have regard to the jurisprudence on the conditions for a valid waiver of constitutional rights. In G. v. An Bord Uchtála [1980] I.R. 32 at p.74, Walsh J. articulated the test for a valid consent to waiver of a constitutional right, in the context of a mother’s consent to place her child for adoption, as follows:
          “I am satisfied that, having regard to the natural rights of the mother, the proper construction of the [statutory] provision … is that the consent, if given, must be such as to amount to a fully informed, free and willing surrender or abandonment of these rights. However, I am also of the opinion that such a surrender or abandonment may be established by her conduct when it is such to warrant the clear and unambiguous inference that such was her fully informed, free and willing intention. In my view, a consent motivated by fear, stress or anxiety, or a consent or conduct which is dictated by poverty or other deprivation does not constitute a valid consent.”
It follows, counsel for the plaintiffs submitted, that a refusal of treatment which in effect constitutes a waiver of the patient’s right to life must, in this jurisdiction, reach a particularly high threshold before it can be considered a valid refusal. It seems to me that the appropriate threshold has been identified by the Supreme Court in In re A Ward of Court in the requirements that there should be “clear and convincing proof having regard to the gravity of the decision” referred to earlier, and that “the court should not draw its conclusions lightly or without due regard to all the relevant circumstances including the consequences …” (per Denham J. at p. 155).
Voluntariness
The passage from the judgment of Walsh J. in G. v. An Bord Uchtála quoted above emphasises that to be valid the consent must be “free and willing”, in other words it must be voluntary. That a decision to refuse life-saving treatment must represent the patient’s independent decision and that a doctor or a court evaluating capacity must be satisfied that the patient’s will was not overborne in such a way that the refusal will not have represented “a true decision” (per Lord Donaldson in outlining the fifth principle in Re T) is beyond question.
In the course of the hearing I ruled that no issue arose that Ms. K’s decision to refuse a blood transfusion was induced by undue influence, because there was no allegation of undue influence in the pleadings. However, I left open the issue of the voluntariness of the decision. I think it is fair to record that I am satisfied that one could not conclude on the evidence that Ms. K was influenced or pressurised in the making of her decision to refuse a blood transfusion by the only person with whom she had contact after the haemorrhage other than Hospital personnel, Ms. F, who will be referred to later.
I have already alluded to the fact that counsel for the plaintiffs questioned the approach adopted by the Ontario Court of Appeal in Malette v. Schulman, the sub-text being that the practices of, and sanctions imposed by, the Jehovah’s Witness religion should raise doubts as to a decision of member of that faith to refuse a blood transfusion on religious grounds. It is possible that in a particular case a court might conclude that the decision of a Jehovah’s Witness to execute an advance directive or, in particular circumstances, to refuse a life-saving blood transfusion was motivated by peer pressure or fear of social or economic deprivation due to disfellowship or disassociation to the extent that the decision was not voluntary. However, for a court to have regard to such factors, in my view, they would have to be specifically pleaded (cf O. 19, r. 5 of the Rules), and there would have to be evidence from which the court could conclude that the decision was not a voluntary decision. Those matters were not pleaded in this case and, accordingly, are not issues. Nonetheless, I think it is fair to record that while that Ms. K was cross-examined in relation to her perceived dependence at the time on members of the Jehovah's Witness faith in this jurisdiction, I am satisfied that one could not conclude on the evidence that her decision was motivated by fear of economic deprivation.
It is noteworthy that, while there have been many cases in which the issue as to undue influence of a family member of a particular faith, for example, of the Jehovah’s Witness faith, over a patient refusing life-saving treatment has arisen, in none of the authorities involving an adult patient to which the court has been referred was the issue of the influence of the sanctions imposed by a particular faith explored in the context of whether such a decision of a patient was voluntary. Every case must be decided on its own facts. I am satisfied that the practices and sanctions of the Jehovah’s Witness religion were not, and could not properly have been, in issue in the evaluation of the quality of Ms. K’s refusal on 21st September, 2006, either in the hospital or on the ex parte application. They were not raised on the pleadings and are not in issue now. In short, in my view, no issue as to the voluntariness or otherwise of Ms. K’s refusal of a blood transfusion arises. This aspect of the case is about Ms. K’s capacity to refuse a blood transfusion after she haemorrhaged on 21st September, 2006 and, in particular, whether there was evidence which objectively raised doubts as to her capacity.
Law Reform Commission recommendation
Counsel for Ms. K referred the court to the discussion on capacity in a Law Reform Commission publication in 2005: Consultation Paper on Vulnerable Adults and the Law: Capacity (LRC CP37-2005). Following a consultation process the Law Reform Commission published in 2006 a report on Vulnerable Adults and the Law (LRC 83-2006). It is pointed out in the report (at p. 82) that there is no obvious reason why capacity to make a Healthcare decision should not be covered by the statutory test of capacity proposed in the report. That test is to be found on p. 51, which contains the following recommendation:
          “The Commission recommends that capacity will be understood in terms of an adult’s cognitive ability to understand the nature and consequences of a decision in the context of available choices at the time the decision is made.”
The Commission further recommends –
          “… that a person will not be regarded as lacking capacity simply on the basis of making a decision which appeared unwise.”
That test is decision-specific and time-specific and is formulated so as to encompass possible impairment of capacity from whatever cause. It is consistent with the C case test, if more pithily expressed.
In the course of the hearing I drew counsels’ attention to a recently published article which is relevant to the capacity question: “Assessing Legal Capacity: Process and the Operation of the Functional Test” by Mary Donnelly (Judicial Studies Institute Journal, 2007 No. 2 at p. 141), which contains a useful commentary on the process of capacity assessment.
The test for assessing capacity: the law
On the basis of the foregoing analysis of the authorities from other jurisdictions and having regard to the constitutional framework within which the capacity question must be determined in this jurisdiction, it seems to me that the relevant principles applicable to the determination of the capacity question are as follows:
(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.
(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.
(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.
(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.
(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.
(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”.
The fourth principle set out above was prompted by the evidence adduced and the arguments advanced on behalf of Ms. K on the issue as to whether a blood transfusion was “necessary” when Ms. K was transfused and will be elaborated on later.
V. The ex parte application and its determination
The application
The application was made in open court, but Abbott J. directed that the defendant should be referred to as Ms. K.
Counsel for the plaintiffs apprised the court of the background to the matter. Ms. K was a 23 year old woman from the DRC. She had gone into labour during the course of the night and, following a difficult delivery, had given birth to a baby at approximately 9.30 a.m. that morning. It was her first delivery. Insofar as the Hospital was aware, her husband remained in the DRC. Ms. K presented for her booking visit in the Hospital on 6th July, 2006. She was accompanied by a friend, who interpreted for her. The court was told that Ms. K’s language was French and she did not speak any English. The Hospital understood up until that morning, when the patient refused a blood transfusion, that she was a Roman Catholic. It was when she refused the blood transfusion that the patient, speaking through her interpreter friend, had informed the Hospital that she was a Jehovah’s Witness.
In relation to the emergency and the patient’s condition, counsel informed the court that shortly after the delivery Ms. K had a massive haemorrhage, when she lost approximately 75% to 80% of her blood. She required a huge blood transfusion in order to survive. Since delivery she had been under the care of four or five consultants.
In the course of informing the court about the emergency, counsel informed the court that it was the opinion of the Hospital that Ms. K was compos mentis. She was also sui juris. The gravity of the situation had been explained to her through her interpreter friend. Counsel then identified what he considered to be the principal difficulty. Ms. K. was then currently stable, in that the Hospital had managed to stabilise her using a number of artificial products, including products which are deemed suitable by Jehovah’s Witnesses. However, there was a real risk, if not a probability, that if she began to bleed again she would die in a matter of hours if the transfusion and all associated procedures did not proceed.
The factual situation having been opened in that manner, Abbott J. stated his view that Ms. K should be taken as being notionally present and opposing the application. He also stated that he was making the assumption that Ms. K might shortly be unable to oppose the application. Counsel confirmed that that was a possibility.
Abbott J. then indicated that he would hear oral evidence from the Master. The Master testified that the account which counsel had presented to the court was accurate. When asked by counsel whether there was any relevant material which was omitted, the Master indicated that there was not.
Abbott J. then sought submissions on the law in relation to the issue before him. In doing so, he commented that he had granted orders previously, overriding the wishes of Jehovah’s Witness patients in relation to treatment of minor children. He commented that, as far as he was aware, such an order had not been made in a case in which a competent adult was refusing treatment. He remarked on the fact that Ms. K was conscious. He acknowledged that the case involved a life or death situation and that, if Ms. K were present in court on a stretcher, she would object to the administration of the treatment.
In making submissions in relation to the law, counsel referred to the decision of the Supreme Court in the PKU test case, stating that the Supreme Court had found that the court could not override the wishes of the child’s parents in the absence of a real risk to the life of the child. However, the effect of the decision was that the court would, in the event of a real risk to the life of the child, intervene to protect the child’s constitutional right to life and, in doing so, would override the wishes of the parents.
The attendance note records that counsel submitted that there would be no difficulty or no question if Ms. K was unconscious. However, there was a real risk that she would slip into unconsciousness and that she would subsequently die.
Counsel then submitted that it was fair to observe that “there may be some issues about the quality of the refusal”, referring to facts which had already been proven: that Ms. K was in a foreign country; that there was the assumption, based on the entry in the medical record, that she was a Roman Catholic; that had the Hospital been aware that she was a Jehovah’s Witness in advance of the delivery she would have been prepared and counselled; that the delivery had been a difficult delivery; and that there was no other parent, insofar as the Hospital was aware, of the baby in the State. Counsel made it clear that he was not suggesting that she was incompetent to make the decision, but suggested that “the question was open to the court as to what extent her refusal was made on the basis of an informed decision”.
In response to an intervention by Abbott J. in the course of which he stated that he was satisfied that, in the event that Ms. K said that she never wanted to see her child again, the court would be entitled to direct her to provide her child with access to Ms. K, the mother, counsel agreed and submitted that the court was required to consider the effect of the principle enunciated in the PKU test case, that is to say, that the religious or other objections of the parents would be overborne if there was a real and substantial risk to the life and welfare of the child. Abbott J. queried whether the judgment referred to the welfare of the child, in addition to the life of the child, and counsel confirmed that it did, stating that all members of the court agreed that the court should intervene in that latter situation. Counsel indicated that he was not in a position to respond to a query by Abbott J. as to whether the child would have a potential action in negligence against the Hospital in the event that his mother died.
Counsel also referred the court to a recent decision in an adoption case, where the courts were found to have general jurisdiction to protect the welfare of children, even where the course of action required did not accord with the wishes of their parents.
Counsel informed the court that the Hospital apprehended the possibility that Ms. K might resist the transfusion. According to the attendance note he explained that, in the view of the Hospital, it would be unsafe to administer a sedative to as to facilitate the administration of the transfusion, on which Abbott J. commented that it was very much a matter for the Hospital to decide what it would do if that arose.
On my reading of the attendance note, counsel for the plaintiffs put to the court the two bases on which it was contended that the court should intervene to authorise the transfusion of Ms. K notwithstanding her refusal: that the court was entitled to conclude that there was a doubt as to whether her refusal was a valid refusal; and that Ms. K’s right to refuse on religious grounds could be overborne if there was a real or substantial risk to the life and welfare of her baby.
Ex tempore judgment of Abbott J.
In setting out the basis on which he was making the order he made, Abbott J. stated that he was of the view that Ms. K was competent and in a position to oppose the application if she was physically present in court. He stated his view that Ms. K could possibly relapse into unconsciousness or lapse into a state in which she would no longer be competent to make a decision. The attendance note also records that he also stated that it might be the case that the transfusion would have no effect and that death would follow in any event.
Abbott J. stated that he was prepared to override Ms. K’s decision in spite of the above, which I take to mean that she was competent, and the respect which was held for her faith. He found that the welfare of the child, which was newly born into this State with no parent in sight other than Ms. K, was paramount. Therefore, it was in the interests of the child that the wishes of his mother, which might result in her death, should be overridden. Abbott J. stated that he was influenced by erring on the side of preserving life, stating that any arguments in relation to whether or not this was a correct decision could be made at a later stage. The reference to erring on the side of preserving life is resonant of the statement of Lord Donaldson in Re T. to which I have referred in two contexts earlier, that doubt in this type of case falls to be resolved in favour of preservation of life. It is also resonant of the final sentence of the judgment in a case relied on by counsel for the plaintiffs in advancing the argument that Ms. K’s baby’s constitutional rights took precedence over her constitutional rights – Application of the President and Directors of Georgetown College Inc. (1964) 331 F2d 1000 (and on re-hearing 331 F2d 1010). Having stated that to refuse to act, only to find later that the law required action, was a risk he was unwilling to take, Judge Skelly Wright of the US Court of Appeals for the District of Columbia Circuit stated that he was determined to act on the side of life. On my understanding of that judgment, Judge Skelly Wright regarded the parens patriae jurisdiction as the source of the state’s right to intervene, which was founded on a common good concept rather than on a constitutionally-protected personal right of the child.
Finally, Abbott J. stated that the issue of the balance of convenience had to be considered and that the balance of convenience lay in preserving life.
Abbott J. then made the order in terms of the wording suggested by counsel.
Criticism of the plaintiffs’ reliance on the capacity question
A strong theme which ran through the submissions made by counsel for Ms. K was that, not only could the Hospital not have had doubts about Ms. K’s capacity to refuse a blood transfusion on the morning of 21st September, 2006, but that the Hospital personnel did not in fact have doubts as to her capacity and capacity was not an issue before Abbott J. Insofar as the attendance note touches on the issue of capacity, it appears to have been a side issue or a “make weight”, counsel suggested. It was submitted that, if the plaintiffs had not raised the issue of Ms. K’s capacity to refuse before Abbott J., it is not open to them to raise it later, nor to seek to displace the presumption that Ms. K had capacity on 21st September, 2006 by establishing a lack of capacity by reference to the C case test.
I reject the argument that Ms. K’s capacity was not an issue on the ex parte application. The resumé of the outline of the facts, which were verified on oath by the Master, and of the submissions made by counsel set out earlier illustrates that it was. A consistent approach was adopted by the plaintiffs when their case was subsequently pleaded.
In the plaintiffs’ statement of claim, which was delivered just a week after the ex parte application in a much less pressurised context than the application had been made, in setting out the factors which gave rise to the plaintiffs’ concern that Ms. K might not have been in a position to make a fully formed decision to refuse to consent to a blood transfusion, the plaintiffs itemised the following factors:
(a) the fact that Ms. K had registered with the Hospital as a Roman Catholic;
(b) the fact that the Hospital had only been informed that she was a Jehovah’s Witness subsequent to the haemorrhage;
(c) the fact that there were potential communication difficulties as English was not Ms. K’s native tongue and she had to rely on her friend to interpret for her; and
(d) the fact that there was a concern that she might not have fully recognised the seriousness of her condition, in that she might not have fully appreciated the lack of any additional alternative treatments to a blood transfusion.

The factors listed at (a), (b) and (c) were spelt out by counsel on the ex parte application. As regards the factor at (d), it is true, as counsel for Ms. K pointed out, that one does not find in the attendance note any record that the court was expressly apprised that the Hospital personnel were concerned that Ms. K did not understand the gravity of her condition, nor an explicit reference to the fact that she might not have fully appreciated that only a blood transfusion would save her life. However, it seems to me that it was implicit in the facts of which the court was apprised and the submissions made by counsel for the plaintiffs that the Hospital personnel had such concerns. That a blood transfusion was necessary to save Ms. K’s life was the central fact which was emphasised by counsel on the ex parte application. By suggesting that there was a question as to the extent to which Ms. K’s refusal was made on the basis of an informed consent, counsel was obviously raising the question, based on his instructions and the Master’s evidence, of the adequacy of Ms. K’s understanding that a blood transfusion was necessary to save her life. Even if that was not spelt out at the ex parte hearing, and it is understandable that it might not have been because of the urgency of the application, nonetheless it was part of the case made to Abbott J.
It is also true that Abbott J., as is apparent from his interjections and from his exposition of the basis on which he was making the order, focused on the alternative ground advanced by counsel for the plaintiffs, namely, the balancing of the rights of the baby and expressed no view on the capacity issue. It has to be acknowledged that on an objective appraisal of the basis which he advanced for making the order, as set out in the attendance note, the only reasonable inference is that Abbott J. was not basing his decision on any concern as to the capacity of Ms. K to make a valid refusal. On the contrary, it is implicit in his statement that he was overriding her decision that he considered her decision to be legally valid. However, in my view, that does not mean that the capacity question was not raised and it does not mean that it was not open to the plaintiffs to raise the capacity question in the substantive action.

VI. The evidence on the capacity question
The Question
On the facts here the capacity question concerns Ms. K’s capacity to refuse a life-saving blood transfusion in the circumstances which prevailed between approximately 10.00 a.m. and 2.35 p.m. on 21st September, 2006. That question is now being considered on the basis of evidence adduced at a hearing which commenced over a year after the question arose and after Ms. K was transfused on the authority of an order of this Court without the question having been expressly judicially resolved. The significance of that is twofold. First, the question of capacity falls to be determined by reference to what was known to the Hospital personnel at the time of her refusal about Ms. K’s condition and her circumstances. Indeed, as the decision of the Court of Appeal of Ontario in Malette v. Schulman indicates, if the Hospital had transfused Ms. K without the intervention of the court and was facing a claim for damages of the type for which Ms. K has counterclaimed, the approach to be adopted in such hypothetical situation would be similar: was there evidence at the time to cast doubt on Ms. K’s capacity? Accordingly, the court must be astute in recognising the effect of hindsight and retrospection in the evidence. Secondly, in evaluating the evidence it is important not to lose sight of the fact that decisions made in relation to Ms. K by Hospital personnel were made in the context of an emergency, not in an elective situation. In stating that, I am not ignoring the fact that there was controversy as to whether the emergency had ceased before the ex parte application to court was made and before the first unit of blood was transfused. That controversy has to be resolved.
In the light of those observations, the question which arises as to Ms. K’s capacity is whether, having regard to all of the circumstances as known to them, the Hospital personnel were objectively justified in doubting the capacity of Ms. K to make a valid decision to refuse a blood transfusion between 10.00 a.m. and 2.35 p.m. on 21st September, 2006. In answering that question by reference to the C case test, it is necessary to consider whether the evidence establishes that at the relevant time -
(a) Ms. K understood and retained the information given to her by the Hospital personnel as to the necessity of a blood transfusion to preserve her life;
(b) Ms. K believed that information and, in particular, whether she believed that she was likely to die without a blood transfusion being administered; and
(c) in making her decision to refuse a blood transfusion, Ms. K had weighed that information in the balance, balancing the risk of death inherent in that decision and its consequences against the availability of a blood transfusion which would preserve her life.
That formulation of the application of the C case test to Ms. K’s refusal assumes that, in layman’s terms, a blood transfusion was “necessary” to save Ms. K’s life. That assumption has been challenged on behalf of Ms. K. I will consider what “necessary” means in this context and whether the assumption is correct according to its true meaning separately. The same issue arises on the allegation that the Hospital personnel exceeded the authority given by the order of Abbott J.
The evidence: general observations
The evidence was heard over approximately thirty-one days. The Master was in the witness box for approximately eight days and under cross-examination for six of those days. With one exception, namely, Dr. Paul Bowman, the Consultant Obstetrician and Gynaecologist to whose team Ms. K was assigned, all of the clinicians, namely, the Specialist Registrar in Obstetrics and Gynaecology (Dr. Noreen Russell), the Consultant Anaesthetist (Dr. Steve Froese), the Consultant Haematologist (Dr. Evelyn Conneally who is attached to St. James’s Hospital and the Hospital) and the Senior House Officer in Anaesthetics (Dr. Farjad Sultan), and all of the midwives who treated and cared for Ms. K after the post partum haemorrhage and until she received the first unit of blood at around 2.35 p.m. testified on behalf of the plaintiffs. All of Ms. K’s medical records from the Hospital were put in evidence. Accordingly, there is a very extensive body of evidence of what happened on the day from the Hospital’s perspective.
The only other witnesses to the events on the day prior to the transfusion were Ms. K and her “birth partner”, who has been referred to throughout the proceedings as “Ms. F”.
There was also evidence from six independent experts, three of whom were called on behalf of the plaintiffs and three on behalf of Ms. K. The three experts who testified on behalf of the plaintiffs were:
(1) Dr. Peter Boylan, Consultant Obstetrician and Gynaecologist at the National Maternity Hospital, Holles Street, Dublin;
(2) Dr. Daniel Gerard Connaghan, Consultant Haematologist at St. Vincent’s University Hospital, St. Michael’s Hospital and St. Colmcille’s Hospital, Dublin; and
(3) Dr. John Loughrey, Consultant Anaesthetist at the Rotunda Hospital and Mater Hospital, Dublin.
The three experts who testified on behalf of Ms. K were:
(a) Dr. Malcolm Griffiths, Consultant Obstetrician and Gynaecologist at Luton & Dunstable Hospital in England;
(b) Dr. Vanessa Martlew, Consultant Haematologist at the Royal Liverpool and Broad Green University Hospital’s NHS Trust and Liverpool Women’s Hospital; and
(c) Dr. Felicity Platt, Consultant Anaesthetist, the Lead Clinician for Obstetric Anaesthesia at Queen Charlotte’s Hospital, London.
The expert witnesses expressed opinions on a whole range of issues from the quality of the record and note taking on the day to what the expert would have done if he or she had been in the position of the clinician with corresponding specialty treating Ms. K on the day. A vast array of articles, text book extracts, clinical advice and guidelines from professional bodies and such like were put in evidence. In many respects the evidence resembled evidence which would be led in a medical negligence claim. Leaving aside Ms. K’s medical condition and the clinical judgments which flowed from it, for example, when the emergency ceased and whether a blood transfusion was necessary to save Ms. K’s life at the time it was administered, in my view, the capacity question falls to be determined primarily by reference to the evidence of the witnesses who were there on the day.
Evidence on relevant facts
Ms. K’s first attendance at the Hospital was on 3rd July, 2003 on a self referral. On that occasion she indicated that she had been booked into Sligo General Hospital but she wished to have her baby in the Hospital. She was examined and advised to make an appointment for an antenatal booking.
Ms. K returned to the Hospital on 6th July, 2006 for the antenatal booking appointment. She was accompanied by Ms. F. Ms. F is an African woman from Angola who, with her husband, had been granted asylum in this State a few years previously. When booking, Ms. K gave her religion as Roman Catholic. She named Ms. F as her “next of kin”, but did not disclose that Ms. F was related to her by marriage, Ms. F being the wife of Ms. K’s husband’s brother. That relationship was not known to the Hospital personnel on 21st September, 2006 and it was only clearly disclosed in these proceedings in a letter of 19th September, 2007 from Ms. K’s solicitors, correcting an earlier reply to notice for particulars dated 3rd August, 2007. When booking, Ms. K had a private interview with a staff midwife. Ms. K spoke French but the interview was conducted through the medium of a telephone interpreter. During the course of the interview Ms. K confirmed the demographic details she had given earlier to the staff at reception and signed off on, including that her religion was Roman Catholic. She told the staff midwife that she lived alone. When pressed by the midwife, because the ethnic origin of the father of the baby was important from a medical perspective, reluctantly she told the midwife that her husband was a black African from the DRC, but that she no longer lived with him. Her medical history was taken. She answered “No” to a query as to whether she had had a blood transfusion. She stated that she was 28 weeks pregnant and that she had attended hospital in the DRC in February or March, 2006 in connection with her pregnancy. Ms. K signed a consent to having blood samples taken from her and they were taken subsequent to the interview.
Between 6th July, 2006 and her admission on 20th September, 2006 Ms. K made eight antenatal visits to the Hospital and she was admitted to the delivery suite on at least three occasions and had two overnight stays in the Hospital. On 24th August she was interviewed by a social worker when she called for a letter of referral to a community welfare officer. She told the social worker that she had come to Ireland via Belgium in April, 2006 on a false passport and that she had applied for asylum. She also told the social worker that the father of her baby was not with her and that he might or might not be in the DRC.
It is clear from her own evidence that Ms. K had given false information to the Hospital as to the circumstances in which she arrived in the State. She was an asylum seeker, but she had arrived in the State via Belfast with her husband in March, 2006. Her husband returned to the DRC after a short stay, but came back in early September, 2006. Ms. K was the holder of a current DRC passport and a current visa for Schengen states issued by the German Embassy in Kinshasa on 9th January, 2006 and a current United Kingdom visa issued in Kinshasa on 2nd March, 2006 when she entered the State in March, 2006. Ms. K’s evidence was that she came to Ireland to protect her baby and to get good medical care. It is also clear from her own evidence that Ms. K misrepresented her financial circumstances to the Hospital personnel. As the Hospital personnel were unaware that the facts had been misrepresented to them until Ms. K testified at the hearing, this does not bear directly on the question of Ms. K’s capacity on 21st September, 2006, but it has relevance to Ms. K’s credibility.
What does bear on the capacity question is that Ms. K, on her own evidence, gave false information to the Hospital in registering as a Roman Catholic on booking in. The reason she advanced for so doing, that she thought it was necessary for consistency with her asylum application, was most unconvincing. There was an opportunity for her to deal with her objection to blood transfusion on religious grounds in confidence at the private interview on 6th July, 2006. There was an obvious opening at that interview, when the inquiry in relation to a blood transfusion and the requirement for blood tests arose, for her to inform the staff midwife that in an emergency she would not take a blood transfusion or blood products on religious grounds. Further, Ms. K had ample opportunity on her many visits to the Hospital before the emergency occurred on 21st September, 2006 to correct the false information she gave the Hospital as to her religion.
A question which hung in the air until the hearing commenced was whether the information given by Ms. K to the Hospital as to her religion was false at the time she gave it. The plaintiffs sought particulars as to when Ms. K first became a Jehovah's Witness but the information was not furnished on the basis that the matter was not relevant to the pleadings. A recurring theme throughout the Master’s evidence was the assumption that Ms. K was a recent convert to a Jehovah's Witness faith. There was evidence adduced on behalf of Ms. K that documentation had been received by the Jehovah's Witness congregation in the State from Ms. K’s former congregation in the DRC evidencing that she had been baptised in Kinshasa in August, 1995. Ms. K c