The High Court has ruled that doctors should not amputate an elderly man's leg against his wishes even though he will probably die if the operation is not carried out.
In what was described by the President of the High Court as a difficult and complex case, the court ruled the man can be allowed home to be cared for by his family.
Mr Justice David Barniville will produce a full written judgment at a later date dealing with the legal issues concerned. However, he said he wanted to give his decision this evening, immediately after the hearing, due to the urgency of the case.
The case came to court because the man has dementia and does not have capacity to make an informed decision. However, he had consistently expressed his wish not to have his leg amputated and earlier this week addressed the court by video link from his hospital bed, telling the judge he did not want the surgery and that he would be afraid to lose his leg even if it meant he would live longer.
The judge said it was a privilege to be able to speak directly to the man earlier this week as he was the "most important person" in the case.
The judge said all of the doctors in the case had done their best and acted with the utmost propriety to the highest ethical and professional standards. They had, however, looked at the case in different ways, with one wishing to save a life and others asking what sort of life was to be saved and what would the quality of that life be if an amputation took place.
The judge said just because the man was lacking capacity it did not mean that his views should not be respected, and he had consistently said he did not want his leg amputated.
The judge said a number of legal principles were involved in his decision including the right to life. While life must be preserved it must not be at any cost, he said. There were often competing Constitutional rights involved in such cases, and in this case, there were many including the right to bodily integrity, autonomy and equality and all of these must be taken into account.
He had taken into account the quality of life the man would have if the surgery took place, his lack of mobility and possible catastrophic and severe mental distress as outlined by medical witnesses. He also took into account the evidence there was a 50% chance the man might die in the weeks after the amputation. Taking all factors into account including the man's own expressed wishes, the judge 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.
Last month the court ruled that the amputation need not proceed, but it later emerged there was a difference of opinion between medical staff. A consultant surgeon told the court earlier this week that the man's condition had changed and there was a greater risk of him bleeding to death suddenly, which meant nursing homes would be unwilling to take on the responsibility and there was no firm palliative care plan in place.
The surgeon disagreed with the views of a geriatrician and a psychiatrist who said amputating the leg against the man's wishes would cause him "catastrophic mental distress". The surgeon said he was "weighing life over a limb" and believed issues such as post traumatic stress and phantom pain could be resolved with medication.
However, a palliative care consultant told the court today that comprehensive measures could be put in place to care for the man either at home, which was his preference, or in a nursing home. A detailed plan could be put in place quite quickly to support his family to care for him daily and in the event of a sudden fatal bleed. The palliative care consultant outlined in detail the measures that could be taken by the man's family carers, his GP and the palliative care team to keep him comfortable. She added that nursing homes also had vast experience in dealing with such cases if required.
The court was told the family was now happy to care for the man at home if the court decided the operation should not take place, provided a clear plan was in place. The family had earlier expressed a wish that the amputation would take place, believing the man may be resilient enough to cope with it.
In further submissions to the court today, counsel for the HSE Donal McGuinness said the decision the court had to make today was one of substituted consent rather than the lawfulness of the medical treatment because everyone was agreed that a decision either way would be ethical.
Mr McGuinness said after all the evidence was considered including the testimony of the man himself who was "the most important person in all of this" the balance of the evidence was in a very cogent way in the direction 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".
Barry O'Donnell, counsel for the court appointed guardian, said it was their submission that the operation should not go ahead taking into account of the evidence, including the man's complex medical condition and the fact that doctors say there was a 50% mortality rate in the first 30 days after the operation.
The man, who is in his 70s, lives in a remote location but has been in hospital since the middle of last year.
He suffers from severe peripheral vascular disease as a consequence of poorly controlled type two diabetes and when first admitted to hospital he was at imminent risk of losing one of his legs.
Doctors carried out surgery to put a graft on his leg and managed to save the limb but the court heard the man has interfered substantially with his wound, putting butter and marmalade on it due to his dementia.
It is now infected and the man's leg is considered unsalvageable by doctors.
The man is at risk of a haemorrhage when the graft inevitably breaks down, the court was told. If such a bleed takes place he could die within 20 minutes.
Addressing the court by video link from hospital on Tuesday, the man told the President of the High Court Mr Justice David Barniville there was "no point in going around with one leg" and that even if he lived longer he "wouldn't be going anywhere". He told the judge his pain was not too bad at the moment and he would get back in touch and would think about it a bit longer. He said he was "afraid" to lose his leg.
A consultant geriatrician told the court that man does not have capacity to weigh up the pros and cons of amputation but had been "clear and consistent throughout" that he was not willing to have his leg removed and had expressed this on both occasions that he spoke to him.
When making a medical decision they had to balance the benefit and the burden of a procedure, he said adding that the burden in this case would be the loss of mobility, the post traumatic stress and depression the amputation might cause. From a welfare perspective it was his view that the amputation should not take place. He said the man would struggle with instructions for his recovery due to his dementia. He did not agree that the man's cognitive ability would improve after surgery, adding that it was vascular dementia which was not reversible.
A consultant psychiatrist, who specialises in older people, said it was her belief that amputating the man's leg against his wishes could cause "catastrophic mental distress" if he believed his wishes had been overruled and he had been ignored. He could feel "assaulted", she added.
She said: "This man is such a character, he is a force of nature and he says what he feels and wants and makes no bones about it. It is important for those of us who work with older people to made sure they don't lose autonomy...just because they have dementia it does not always mean that what you have to say isn't very valid and even though he doesn't meet the test for capacity, his vehemently expressed view that he needs to have his leg is a very convincing factor to take into account here."
She said being mobile was important to the man and was often a feature of people with dementia who could be restless. She agreed with an occupational therapist report that the man would have difficulty using a wheelchair or prosthetic and for all of these reasons her assessment reluctantly was that she agreed he should not have the surgery. She said it might also be the case that the man would suffer repeated trauma as he could forget the leg had been amputated and have to be told again and again and deal with the horror of that discovery repeatedly.
