Patrice O'Keeffe

A recent Supreme Court decision has provided helpful clarification and guidance to healthcare providers when managing patients who do not have capacity in circumstances where they express a desire to leave the healthcare facility.

Background

Mrs AC was first admitted to an acute hospital in October 2015 after a fall at home caused her to break her right hip. She was 93 years old at that time. On December 5th 2015, Mrs C was discharged from the hospital into the care of her son, but was shortly readmitted after another fall caused her to break her left hip.

The MDT who were charged with her care were of the view that due to Mrs C’s requirement for full-time assistance with the activities of daily living, her care needs would be best met in a nursing home on discharge. The MDT were also of the opinion that Mrs C did not have the capacity to engage in decisions relating to her care and discharge plans.

Mrs C’s son, Mr PC, wanted his mother to be released into his care. However, the MDT and the hospital felt that Mrs C’s best interests, welfare and care needs would not be met if she were to be discharged to her children.

In June 2016, Mrs C signed a letter indicating that she wished to be discharged from hospital and that all costs associated with her rehabilitation at the home of her son should be the responsibility of the hospital and the HSE.

The MDT were of the view that Mrs C did not have the capacity to make a decision to self-discharge at this time. Her son subsequently made two habeas corpus applications to the High Court pursuant to Article 40.4.2 of the Constitution, claiming that his mother was being unlawfully detained by the hospital. These applications were refused by the High Court and Mrs C was taken in wardship in August 2016.

Court of Appeal decision

Mrs C’s son, Mr PC, appealed the High Court decision to the Court of Appeal. The Court of Appeal was satisfied that in preventing her from leaving, Mrs C had in fact been detained by the hospital. Taking guidance from PL v Clinical Director of St. Patrick’s University Hospital [2018] IECA 29, Justice Hogan said that while “hospital personnel could lawfully attempt to persuade a patient not to leave, this must involve persuasion and not restraint”.

Mr Justice Hogan stated that the hospital acted in a manner that was too paternalistic when they prevented Mrs C from leaving the premises after she expressed a wish to do so, even though the hospital thought it to be in her best interests to remain. Even though Mrs C’s decision-making capacity was impaired, Mr Justice Hogan stated that this did not of itself confer any legal power of detention and the Court held that Mrs C’s constitutional rights to personal liberty had been infringed.

Mr Justice Hogan emphasised that Article 40.4.1 tells us that all detention must be accordance with law, and he concluded that the hospital did not act lawfully in restraining Mrs C and preventing her from leaving the hospital in the company of her son and daughter on 23rd June 2016.

Supreme Court decision

The HSE appealed the Court of Appeal ruling that Mrs C was unlawfully detained by the hospital. The Supreme Court found that the Court of Appeal analysis was flawed insofar as it did not apply enough significance to the fact that Mrs C had limited decision-making capacity and that she might not actually have wanted to leave the hospital, but was rather complying with the wishes of others in expressing a desire to leave. Ultimately, the Court held that the detention was lawful on the basis of the Doctrine of Necessity.

The Supreme Court set out helpful guidance:

1. Does the patient truly want to leave, or is she in reality being removed by third parties in circumstances where there is a real risk to her health and welfare?
   • If it is a case of removal rather than a wish to depart, then the hospital’s duty of care extends to protecting her against third parties.
   • If it is a case of a genuine wish to leave, and the patient has capacity to make that decision, all the hospital can do is attempt to persuade her that it is in her own best interests to stay.
2. If the hospital is concerned that the patient lacks capacity to make the decision to leave, then an assessment of capacity must be carried out.
   • If the patient is found to have capacity, the patient is entitled to leave the hospital.
   • However, if the patient is determined to lack capacity, then the hospital must seek assistance from the Courts. While the Doctrine of Necessity may permit the hospital to detain a patient (for no longer than necessary) in the interests of her personal safety, the hospital has no general power of detention, and this is why court intervention is needed. People with impaired mental abilities are protected by the same constitutional guarantee of personal liberty under Article 40.4 as any other person.

• Patrice O’Keeffe is a partner in healthcare and medical law at Comyn Kellher Tobin.