The High Court has made rare orders permitting an urgent mastectomy for a woman who doctors believe lacks the legal capacity to consent to the surgery.
High Court president David Barniville said on Thursday that he had no choice but to invoke the court’s wardship jurisdiction in the “very unusual” application, which may result in the woman’s enduring power of attorney (EPA) being discharged, even though this is not what she would have wanted.
The woman, who is in her 70s, has a history of vascular dementia and now requires surgery to remove a breast lesion, the court heard.
Confusion arose
In 2018 she selected her nephew, who is a lawyer, to be her attorney, a role which allowed him to later take charge of her financial and personal interests when she no longer had the capacity to do so herself.
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He told the court he and his aunt’s family all wanted the surgery to proceed, and he thinks confusion arose regarding the attorney’s powers in relation to medical decisions.
The Health Service Executive asked the court to provide clarity about the attorney’s legal powers and he “fully accepts” the court’s findings that he cannot make medical decisions.
He wants only what is best for his aunt and is “very upset” that the EPA could be annulled as he requires access to her finances to be able to pay her bills and team of carers, he said. He questioned whether the HSE could reconsider its approach to the situation.
Moving the application for the HSE, barrister Catherine Duggan noted a “legislative lacuna” in this area.
She said the court’s orders were the “only option” and these would have “fatal consequences” for the EPA. The woman had been deemed medically fit for the “urgent” surgery, and there was “no alternative” treatment, she told the court.
The judge said he did not believe the woman would want to discharge the EPA, which has been operating “very effectively”. However, he felt “compelled” to make orders and said he would have to work out later how these would affect the EPA.
He added that he was open to hearing legal argument at a later stage that might show a pathway to enable him to keep the EPA arrangement intact.
Both EPAs and the court’s wardship jurisdiction relate to a person’s mental capacity to make decisions in their best interests. Under the wardship process, orders from the High Court president must be obtained in relation to medical decisions.
The judge said the “essential” surgery was scheduled for early next week.
“I don’t want to take the risk that putting off the decision could be a risk for [her] ultimate health and survival.”
The consultant in charge of the woman’s care believes she lacks the capacity to make decisions in relation to her health and to consent to the surgery and anaesthetic, according to the judge. The doctor is not prepared to proceed with the surgery without the court’s go-ahead, which involves the wardship jurisdiction being invoked.
The judge said an application of this kind for a person who had an EPA had not been brought during his presidency or, seemingly, during that of former president Mary Irvine, who assumed the role in 2020.
Court’s jurisdiction
The most recent comparable orders he could find were made by Ms Justice Irvine’s predecessor, Mr Justice Peter Kelly, and all of those cases involved the EPA being discharged and replaced by the court’s jurisdiction, said Mr Justice Barniville.
Usually, in these circumstances, the judge said, he thinks doctors normally consult a patient’s attorney and family to try to accommodate what everyone understands is the patient’s wishes. Here, he said, the doctors “I’m sure cautiously, and I have no doubt appropriately, took the view they cannot proceed with the surgery” due to concerns about the woman’s capacity.
The judge said the only medical evidence before him was that the woman lacks capacity.
“By making orders in this application I’m certainly running the risk that I’m putting in peril the continued validity of the EPA,” he added.
The judge made orders invoking the court’s inherent jurisdiction and sending out a medical visitor to assess the woman’s capacity. He noted the medical visitor would likely not see her prior to the surgery.
The case will return to court next month.
