Mental Health, Taking Of Blood Samples Without Patient Consent

Health Service Executive v "X" (a person of unsound mind not so found) 1

Mr Justice MacMenamin in his judgement dated 26 July 2011, held that the taking of blood samples by doctors treating a woman suffering from severe mental illness was lawful, despite her failure to give consent.

In 2007, X (the "Defendant") was diagnosed as suffering from paranoid schizophrenia and a borderline personality disorder, conditions associated with extreme violence. As the Defendant was considered a danger to herself and others, she was admitted to the Central Mental Hospital in 2007 as a civil patient, under the Mental Health Act 2001 (the "Act"). In order to ameliorate her condition, doctors administered a drug regime which was known to cause a potential life threatening adverse reaction, the unpredictable idiosyncratic destruction of the Defendant's white blood cells. In order to prevent this, the woman's blood had to be monitored by the taking of regular blood tests. The Defendant objected and restraints were required when blood was being taken. The treating doctors, who believed that the Defendant did not have the capacity to make decisions regarding her own welfare, brought this case to the Court, seeking guidance on the legality of necessary treatment.

In December 2010, the Court granted permission on an interim basis for the administration of the drug regime and the taking of blood, in circumstances where it was verified by an independent Psychiatrist, that the treatment was for the patient's benefit.

At the full Hearing the Court considered the issues in the context of the Constitution and the European Convention on Human Rights, (the "Convention"). Dr Kennedy of the Central Mental Hospital, drew attention to the fact that while the Act permits treatment without consent, there is a possibility, it may not permit the drawing of a blood sample, without consent. This is because the definition of the term "treatment", contained in the Act allows for the administration of remedies intended for the purpose of counter acting a mental disorder. The question arises as to whether the health professionals have the legal power or authority under the Act to actually restrain a patient to draw blood, a procedure ancillary to the necessary treatment.

Counsel for the Defendant stated that "treatment" should be interpreted strictly, due to the serious implications treatment without consent may have on fundamental rights and...