AMC v St. Luke's Hospital, Clonmel

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 28 February 2007
• Neutral Citation: [2007] IEHC 65
• Docket Number: [2007 No. 118 SS]
• Court: High Court
• Date: 28 February 2007

[2007] IEHC 65

THE HIGH COURT

Record Number: No. 118 SS/2007

C (A M) v ST LUKES HOSPITAL CLONMEL

Between:

AMC

Applicant

And

St. Luke's Hospital, Clonmel

Respondent

Abstract:

Mental Health - Habeas corpus - Involuntary detention - In accordance with law - Statutory interpretation - Transitional measures - Expiry of involuntary detention - Date of order - Applicant danger to self - Mental treatment Act 1945 - Mental Health Act 2001

Facts The applicant was an involuntary patient who sought to challenge the legality of his detention pursuant to an order made under the Mental Treatment Act 1945. The issue arose as to the application of the transitional measures under the Mental Health Act 2001 and whether there had been an error in the calculation of the renewal periods in the order for detention of the applicant.

Held by Peart J. that the Act was clear and unambiguous as to the running and lapsing of periods of time. The Order for renewal had not been completed within the time periods. The detention of the applicant was not in accordance with law. The Court would not make any immediate order. The best interests of the applicant were the concern of the Court.

Reporter: E.F.

1 Mr Justice Michael Peartdelivered on the 28th February 2007:

2 The applicant has a long history of psychiatric illness since he was diagnosed as suffering with paranoid schizophrenia in 1994. Since that time he has had several admissions to the respondent hospital. He has been an inpatient at St. Luke's Hospital, Clonmel ("St. Luke's") on a continuous basis since the 25th April 2002 when he was admitted pursuant to the provisions of the Mental Treatment Act, 1945. That admission was at first on a voluntary basis but on the 2nd June 2002 his status was changed to that of a temporary involuntary patient under the provisions of s. 184 of that Act. He remained detained on that basis until the 2nd June 2004, that being the maximum period allowed for detention on that basis, including any extensions permitted.

3 After the 2nd June 2004, he remained detained as a voluntary patient. It is clear from the evidence adduced that he remained ill during all of these periods. However on the 2nd June 2006 it was agreed following an assessment and discussion with nursing staff that he should be permitted to go on a holiday to Ardmore, albeit supervised by nursing staff from the respondent hospital. However while he was on holiday it was noticed that he experienced an acute exacerbation of his schizophrenic illness which included threatening violence to others. He was returned under nursing escort to hospital on the 2nd June 2006, where on the following day he was interviewed and assessed, and was reverted to the status of an involuntary patient. That order pursuant to s. 184 of the 1945 Act was made on the 9th June 2006. That order would in the ordinary course of events have expired six months later at midnight on the 8th December 2006.

4 Since no issue arises on this application as to the lawfulness of the applicant's detention up to that date, it is unnecessary to set out in any more detail the history of his detention and the medical reasons for it. The issue arising relates to how the transitional provisions of the Mental Health Act, 2001 ("the 2001 Act") were operated, and it is submitted that an error has occurred which has rendered his present detention unlawful, albeit with no suggestion of mala fides on the part of hospital personnel, and an acceptance that everything which has been done has been done in the best interests of the applicant. It is beyond doubt in my view that the evidence is clear that the applicant requires to be detained both in his own best interests and for the protection of others. Nevertheless, the Court must order the release of the applicant if it is not satisfied that his detention is not in accordance with law.

5 As stated already, certain relevant provisions of the Mental Health Act, 2001 came into force on the 1st November 2006, including certain transitional provisions intended to permit a seamless transition and continuation of detentions already in being under the 1945 Act, to detention under the 2001 Act. These provisions were designed to facilitate this transition in the interests of the patients concerned.

Section 72 of the 2001 Act - transitional provisions:

6 Under these new provisions contained in s. 72, sub-s.(1) of the 2001 Act, a person such as the applicant who was in involuntary detention under s. 184 of the 1945 Act, is to be "regarded as having been involuntarily admitted" to the same hospital under Part II of the 2001 Act, and, as provided by s. 72, sub-s. (2) his treatment and detention shall be regarded as authorised until the expiration of the period during which he may be detained pursuant to the detention order made under s. 184 of the 1945 Act. In the case of the applicant, as already stated, this detention and treatment was thereby regarded as authorised until midnight on the 8th December 2006.

7 If an order renewing the detention of the applicant had been made on the 9th December 2006, following the expiration of the previous detention on the 8th December 2006, no difficulty would be seen to exist in this case since the review on the 29th December 2006 would have been within 21 days from the making of that renewal order.

8 However, what occurred was that on the 4th December 2006, the "Responsible Consultant Psychiatrist" having examined the applicant at 14.15pm on the 4th December 2006, expressed her opinion that he "should continue to be detained for a period not exceeding three months", gave her reasons, and made an order renewing the applicant's detention for a period of three months. The applicant was notified in writing.

9 It is provided by s. 72, sub-s.(4) of the 2001 Act that the applicant's detention shall be referred to a tribunal by the Mental Health Commission before the expiration of the period of detention under s. 184 of the 1945 Act, and it is further provided that the tribunal "shall review the detention as if it had been authorised by a renewal order under s. 15, sub-s.(2) of the 2001 Act.

Section 15 of the 2001 Act:

10 Subsection (1) provides that an admission order (which includes an order made under the transitional provisions in s. 72) shall remain in force of a period of 21 days from "the date of the making of the order" - not the date from which the order takes effect. In this case the date of the making of the order is the 4th December 2006, even though the previous order remained in force until midnight on the 8th December 2006.

11 By s. 16 of the 2001 Act, it is provided that where such an order is made, as in this case, the consultant psychiatrist making the renewal order shall "not later than 24 hours thereafter, (a) send a copy of the order to the Mental Health Commission, and (b) give notice in writing of the making of the order to the patient.

12 In accordance with these provisions in so far as (b) is concerned, the Consultant Psychiatrist in the present case complied with this requirement by giving the applicant on the 4th December 2006 a form entitled "Patient Notification of the making of an admission order or a renewal order". That form, inter alia, tells the patient the nature of the order made, and of his rights to legal representation, that he will have his detention reviewed by a Mental Health Tribunal in accordance with the provisions of s. 18 of the 2001 Act, that he is entitled to appeal against the decision of the Mental Health Tribunal to the Circuit Court, and that he may be admitted as a voluntary patient should he indicate a wish to be so admitted.

13 In so far as (a) is concerned, a copy of the order was sent by the consultant psychiatrist to the Mental Health Commission. The Commission in due course referred the matter to the Mental Health Tribunal in accordance with s. 17 of the Act, assigned a solicitor, James J. Hally to act for the applicant, and directed a consultant psychiatrist to examine the applicant, interview the consultant psychiatrist responsible for the care and treatment of the applicant, review the records so as to determine whether he was suffering from a mental disorder and to report thereon in writing within 14 days to the Tribunal, and to provide a copy thereof to the applicant's solicitor.

14 Section 18 provides that following the making of a renewal order such as was made in the present case, the Tribunal shall review the detention of the patient concerned, and shall either affirm or revoke the order, but it is provided by s.18, sub-s.(2) that a decision in this regard must be made as soon as may be but not later than 21 days after the making of, in this case, the renewal order. That order was made, as stated already, on the 4th December 2006, even though the order it was renewing remained effective and did not require renewal until midnight on the 8th December 2006. Clearly the intention was that the renewal would take effect upon the expiry of the earlier order, rather than ahead of that expiry. Nonetheless the section says what it says.

15 The period of 21 days referred to for the review of the order made on the 4th December 2006 would have expired on the 25th December 2006. What in fact occurred was that the review was listed for the 29th December 2006, and took place on that date, on which occasion the applicant was represented by Mr Hally. The decision was made to "affirm the order" made on the 4th December 2006. But it should be stated also that at the outset of...