Court caught in 'Catch-22' as woman now has capacity to refuse medical treatment
High Court reporters
The High Court president faced a "Catch-22" situation on Thursday in having to discharge orders that facilitated the recovery of a young woman’s capacity to consent to medical treatment.
Mr Justice David Barniville last week permitted doctors to feed the woman through a nasogastric tube. He had the power to make the orders under the High Court’s inherent jurisdiction as she had lost mental capacity due to malnourishment and weight loss from not eating.
His orders were effective, and the tube feeding has helped her regain the capacity to now be able to consent to or decline medical procedures.
The woman, who is in a hospital, said she would agree to the tube feeding only while a court order was in place and was refusing it if there was no court order.
Mr Justice Barniville said his "hands are tied", as he does not have the power to continue the peg feeding orders without her consent when the medical evidence is that the woman has regained mental capacity.
"This is very much a Catch-22 situation," he said. The tube feeding is needed "potentially to save her life", and this situation could potentially happen "again and again and again", he added.
The judge said the situation is "very difficult and very distressing" for all involved.
Capacity
Judge Barniville had made the original orders last week on the application of the Health Service Executive (HSE), represented by barrister Ciara Dowd.
On Thursday, she said she was not seeking an extension of the peg feeding orders as the young woman now has capacity. She could lose capacity again due to brain fog and other impairments by restricting her eating, Ms Dowd added.
The appointment of a representative to liaise with the woman and relay her best interests to the court continues to be beneficial and should be extended, she said.
Natalie McDonnell BL, for the court-appointed representative, agreed that the most the court could do on Thursday was to discharge the feeding orders and keep in place her client’s position.
Mr Justice Barniville said the parties can return to court promptly if the woman says she will consent to the orders. He told them not to let the weekend pass if that situation arises.
If consent is not forthcoming, the case will return before him on Monday.
He also expressed concern that the woman is in a "dire" and "precarious" situation and effectively has no psychiatric treatment because of the area she is in. He said he hopes the HSE will "move mountains very quickly" to assist her.
Ms Dowd said she was seen by a consultant psychiatrist this week and would pass his message on to her client.
The judge discharged the peg feeding orders.
