IRISH TIMES 03.09.2013

by Jacky Jones

A recent High Court decision that the Health Service Executive need not consider an application for a home birth has implications for consent to all medical and surgical procedures for both sexes.

The main reason women ask for a home birth is because they want to control events as opposed to submitting to whatever procedures hospital staff think are necessary.

Although they may not realise it, women have control over what happens to their bodies when they avail of a hospital birth. In fact, men and women can control all decisions regarding consent to medical, surgical, and other treatments and procedures, whether carried out in hospitals or by community services.

The new National Consent Policy, published by the HSE in May 2013, makes clear that “consent must be obtained before starting treatment or investigation, or providing personal or social care for a service user or involving a service user in teaching and research”.

All service providers must “respect the service user’s right to self-determination [or autonomy] – their right to control their own life and to decide what happens to their own body”.

The policy applies to “all interventions . . . in all locations”.

With rare exceptions, a person’s right to refuse an intervention applies even when the decision seems unwise and “may result in his or her death”.

Rare exceptions
These rare exceptions include: refusal of treatment in pregnancy; refusal of isolation for infectious disease; refusal of treatment by a service user involuntarily admitted under the Mental Health Act 2001; and refusal of the taking of blood and urine samples for Garda investigations into driving under the influence (DUI) of alcohol and/or drugs.

The consent of a pregnant woman is required for all health interventions, including: induction and speeding up of labour; membrane sweeps; performing routine or selective episiotomies; and Caesarean sections.

The consent policy makes clear that in circumstances when a pregnant woman refuses treatment and the life of a viable foetus is put at risk, health professionals must seek legal advice as to whether an application to the High Court is necessary.

“Because of the constitutional right to life of the ‘unborn’ (article 40.3.3 of the Constitution), there is sufficient legal uncertainty regarding the right of a pregnant woman’s right to refuse treatment”.

Under the provisions of the Health Act (1947), a person with an infectious disease, such as TB, who refuses treatment that would render them no longer a risk to others, can be detained and isolated.

A “chief medical officer may order in writing the detention and isolation of such person in a specified hospital or other place until such medical officer gives a certificate that such person is no longer a probable source of infection”.

Unwilling or unable
Although the Mental Health Act 2001 allows, in limited cases, mental health treatment to be provided even if the service user is unwilling or unable to consent, service providers have an “ethical imperative to seek consent”.

The Assisted Decision-Making (Capacity) Bill 2013, published in July, may improve the rights of persons involuntarily detained although this remains to be seen. It is a criminal offence to refuse to comply with the requirement to provide a blood or urine sample for DUI purposes.

Whether readers agree or not with the laws relating to the rare exceptions listed above, citizens have, in theory, control over consent to all medical and surgical procedures, acceptance of personal and social care, or involvement in teaching and research.

In practice, service users often feel powerless and unable to refuse consent. Seeking consent is not “merely getting a consent form signed” according to the policy.

A process of communication must take place and “service users must understand they have a choice”.

Irish health services, although improving, still have a long way to go. The 2013 report from the Irish Society for Quality and Safety in Healthcare, Measuring the Patient’s Experience of Hospital Services: Hospital Inpatient Survey 2011 shows that “patient participation” was the only dimension of care ranked as top priority for improvement.

Home-like experience
Pregnant women in particular should be offered midwife-led, as opposed to obstetrician-led, care, which is safer and more likely to mean a woman has a less medical and more home-like experience.

If a woman is offered a procedure she does not want, she can refuse and go to the High Court.

A few legal challenges might eventually get rid of article 40.3.3 and mean a pregnant woman is not treated as infectious, mentally ill or a drunk driver.


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