Judge rules mentally ill woman should have masectomy carried out

-By Ann O'Loughlin

A judge has made orders permitting a mastectomy to be carried out within days on a mentally ill woman deemed to lack capacity to consent.

The President of the High Court, Mr Justice Peter Kelly, said the medical and psychiatric evidence showed the surgery is in the woman's best interests, necessary and urgent because a breast tumour detected last October is growing.

The evidence was the woman lacks understanding of and insight into the seriousness of her cancer and lacks capacity to consent to the surgery.

A solicitor recently appointed by the HSE for the woman said, when he explained to her in recent days she could die unless she had the surgery, she said she "would like to live" and was happy for the court to decide whether she should have the surgery.

The treatment orders were sought by Maireád McKenna, for the HSE, in the context of an intended application to have the woman made a ward of court, to be decided later.

The judge heard the woman, aged in her fifties, had told her psychiatrist her cancer was caused by excessive showering, she could cure it by not having showers and it would "go away".

The psychiatrist said the woman also does not appreciate or understand the severity of her mental illness, schizophrenia, which was untreated for some 25 years until she came to the attention of the mental health services some years ago.

The woman also lacks insight about a serious and continuing physical illness for which she was previously admitted to hospital on an emergency basis but sought to leave before receiving necessary life-saving treatment.

She was involuntarily detained, as a patient under the Mental Health Act, for that treatment and that detention was later extended when she said she would not take necessary medication for her mental and physical illnesses.

A Mental Health Tribunal later lifted the woman's involuntary detention but she remains voluntarily in a support unit and regularly visits her siblings, also with mental health difficulties, in the family home.

Her parents are dead and she has some assets but the evidence indicated she lacks capacity to manage her personal or financial affairs and is vulnerable in both respects.

The solicitor who met the woman to ascertain her views about the proposed mastectomy said he shared the medical view about her lack of capacity. While not excusing delays in this matter, the HSE's Breastcheck screening process was the reason the woman's cancer was detected, he added.

In permitting the mastectomy, the judge said the cancer was detected last October and doctors agreed early this year a mastectomy was necessary after an initial dispute whether a lumpectomy would be adequate.

He criticised delay in alerting the HSE to the fact a court order would be required for the treatment due to the view the woman lacked capacity to consent and more delay since mid March by lawyers for the HSE in applying to have the woman made a ward of court.

The delays impacted on the woman's rights in the context of the proposed surgery, of which she had little notice, and the application for wardship, he said. Had the application been made sooner, she would have had more time to consider whether to object to the surgery and/or wardship and seek additional medical evidence.

Ms McKenna said the HSE apologised for any delay, everyone was "genuinely trying to do their best", the psychiatrist has a considerable workload and the HSE had arranged for a solicitor to ascertain the woman's views. A solicitor for the HSE also apologised to the woman and the court over delay.

The judge thanked the solicitor for the "candid" apology, adding he was aware of the heavy caseload of the psychiatrist and her many other responsibilities.

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