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Senile man cannot be operated on against will
Pic: Cian Redmond

15 May 2023 / courts Print

Senile man cannot be operated on against will

A man who needs a life-saving operation should not be operated on against his will, the High Court has ruled.

Doctors should not amputate the patient’s leg against his wishes even though he will probably die if the operation is not carried out, Mr Justice David Barniville said (12 May).

A full written judgment will be given at a later date on what the President of the High Court called “a difficult and complex case”.

The patient has dementia and is without the capacity but told the court in video evidence that he doesn’t want his leg amputated by the surgery.

Mr Justice David Barniville praised the medics for their ethical and professional standards though attending doctors had differing opinions. The judge said that even if the man was lacking capacity it did not mean that his views should not be respected.

He added that several  legal principles were involved including the right to life. While life must be preserved it must not be at any cost, he said, given the constitutional right to bodily integrity, autonomy and equality.

Mental distress

Surgery would cause a lack of mobility and severe mental distress as well as a risk of death.

Mr Justice Barniville ruled it was in the man's best interest that the amputation does not take place and that a plan be put in place for him to be discharged home to be cared for by his family with the support of a palliative care team.

The court was told the family would care for the man at home with a palliative care plan in place.

Lawyer for the HSE Donal McGuinness said the decision hinged on substituted consent rather than the lawfulness, since there was unanimity that a decision either way would be ethical.

He added that the balance of the evidence was that the court should use its consent to allow him to be "left alone and to return home to his family and live out the rest of his life in a very happy way in the bosom of his family".

The hospitalised man lives rurally and is in his 70s, and suffers from type two diabetes. His dementia has led to poor outcomes from a previous surgery, with a risk of a haemorrhage.

A consultant geriatrician told the court that the man would struggle with instructions for his recovery due to his dementia while a consultant psychiatrist said that amputation could cause "catastrophic mental distress".

Older people, even with dementia, should not lose autonomy, she said, and should be respected for holding valid opinions.

Being mobile was important to the man and was often a feature of people with dementia who could be restless. She agreed he should not have the surgery.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland