B (J) v Director of The Central Mental Hospital & Hearne

• Jurisdiction: Ireland
• Judge: Mr. Justice John McMenamin
• Judgment Date: 15 June 2007
• Neutral Citation: [2007] IEHC 201
• Date: 15 June 2007
• Court: High Court
• Docket Number: [2007 No. 434SS]

B (J) v DIRECTOR OF THE CENTRAL MENTAL HOSPITAL & HEARNE

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO

ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND 1937

BETWEEN

J. B.

APPLICANT

AND

THE DIRECTOR OF THE CENTRAL MENTAL HOSPITAL AND DR. RONAN HEARNE

RESPONDENTS

AND

THE MENTAL HEALTH COMMISSION

NOTICE PARTY

AND

THE MENTAL HEALTH TRIBUNAL

NOTICE PARTY

[2007] IEHC 201

No. 434 SS/2007

THE HIGH COURT

MENTAL HEALTH LAW

Detention

Lawfulness - Inquiry involving compliance with statutory regime - Power to make renewal order - Whether there could be more than one consultant psychiatrist responsible for care and treatment of patient - WQ v Mental Health Commission [2007] IEHC 154 (Unrep, Ó Néill J, 15/5/2007) considered - Mental Health Act 2001 (No 25), ss 2 and 15 - Detention found to be lawful (2007/434SS - MacMenamin J - 15/6/2007) [2007] IEHC 201

B(J) v Director of the Central Mental Hospital

CONSTITUTION ART 40.4

MENTAL TREATMENT ACT 1945

MENTAL HEALTH ACT 2001

MENTAL TREATMENT ACT 1945 S184

MENTAL TREATMENT ACT 1945 S189

MENTAL TREATMENT ACT 1961

MENTAL TREATMENT ACT 1945 S203

MENTAL TREATMENT ACT 1945 S204

MENTAL TREATMENT ACT 1945 S208

MENTAL TREATMENT ACT 1945 S209

MENTAL TREATMENT ACT 1945 S208(5)

MENTAL HEALTH ACT 2001 S72

MENTAL HEALTH ACT 2001 S18(4)

MENTAL HEALTH ACT 2001 S18

MENTAL HEALTH ACT 2001 S15(2)

MENTAL HEALTH ACT 2001 S15(3)

MENTAL HEALTH ACT 2001 S3

MENTAL HEALTH ACT 2001 S21(4)

MENTAL HEALTH ACT 2001 S21

MENTAL HEALTH ACT 2001 S22

MENTAL HEALTH ACT 2001 S23

Q (W) v MENTAL HEALTH COMMISSION & ORS UNREP O'NEILL 1.5.2007 2007 IEHC 154

MENTAL HEALTH ACT 2001 S2

MENTAL HEALTH ACT 2001 S18(1)(a)(ii)

MENTAL HEALTH ACT 2001 S9

MENTAL HEALTH ACT 2001 S10

MENTAL HEALTH ACT 2001 S12

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S15

MENTAL HEALTH ACT 2001 S16

CLARKE, IN RE 1950 IR 235

GOODEN v ST OTTERAN'S HOSPITAL 205 3 IR 617

M (A) v KENNEDY (CLINICAL DIRECTOR OF CENTRAL MENTAL HOSPITAL) UNREP PEART 24.4.2007 2007 IEHC 136

1 1. On 23rd May, 2007, I delivered a decision in this inquiry under Art. 40.4 of the Constitution. In that judgment I held that the detention of the applicant J. B. was lawful. In view of the importance of the issues which arose from the inquiry, I indicated that I would furnish a judgment setting out the reasons for my decision in more detail. I now do so. In order to place the present application in its legal context it will be necessary to consider certain provisions of the Mental Treatment Acts 1945 and 1961 ("the Acts of 1945 and 1961") insofar as they relate to the issue of care and responsibility for such patients and the procedure applicable under those provisions for the renewal of orders for their detention. The judgment will turn then to the provisions of the Mental Health Act, 2001 which must be considered in this application.

Background facts

2 2. This is a second application for an inquiry pursuant to Article 40.4 within a month in relation to the applicant. On 5th April, 2007 a similar inquiry was held. At issue there were the provisions of ss. 184 and 189 of the Mental Treatment Act 1945. On 4th May, 2007 McGovern J. delivered a judgment deeming such detention lawful, wherein he set out general background facts to the case. As these facts are of ongoing relevance, this recital of the applicant's unfortunate background will be adopted as part of this judgment:

"The applicant was born on 20th June, 1980 and came from a troubled family background. He is one of eight children. His family came to the attention of the relevant Area Health Board in 1985, as there were concerns of domestic violence and physical abuse by the applicant's father. An inquiry established that one of the applicant's sisters had been repeatedly sexually abused by the applicant and another sibling and there is evidence to suggest that the applicant himself had been sexually abused between the ages of eight and eleven by a teenage male neighbour. The applicant was expelled from school and began stealing from shops, drinking and smoking cannabis from the age of thirteen. He also experimented with other drugs. In 1996, J. B. was convicted of stealing a motor vehicle and spent four years in St. Patrick's Institution. In 1998, he was again charged with stealing a vehicle and remanded in St. Patrick's Institution. On the 7th December, 2000, he was charged with criminal damage and received a sentence of sixteen months. He also received a sentence for sexual abuse and for unlawful carnal knowledge of a thirteen year old female. On 28th January, 2002 after completing his sentence he was re-arrested on a charge of sexual abuse of one of his sisters. Sadly he has had a very troubled background indeed.

J. B.'s first contact with the psychiatric services was in January, 1988 when he was seven years old. He was referred due to behaviour problems which were understood to originate from his parents marital disharmony and family violence. At the age of sixteen he harmed himself by cutting his elbow while smashing it into a window. At the age of nineteen he took overdoses of drugs on two occasions. While in prison in 2000, J. B was assessed by a consultant forensic psychiatrist. At this time he had been reporting strange bodily experiences and exhibited signs of psychotic behaviour and paranoia. He has since been diagnosed with schizophrenia, alcohol dependence syndrome, harmful cannabis use and paraphilia (a preference for adolescent girls)".

3 3. McGovern J. continued:

"There is no doubt that he has been a danger to himself and to others, particularly adolescent girls and that he required treatment as an involuntary patient in psychiatric institutions. Between April, 2004 and April, 2007, he has been detained as a temporary chargeable patient under the provisions of s. 184 of the Mental Treatment Acts 1945 to 1961..."

The issues raised in that case and the legislation in issue are of contextual importance to this application and should now be considered.

The Acts of 1945 and 1961

4 4. Before McGovern J., it was contended on behalf of the applicant that his detention was unlawful because, in effect, he had been detained under the provisions of s. 184 of the 1945 Act from 28th October, 2004 until 16th April, 2007. It was submitted that this frustrated the purpose of s. 184 of the 1945 Act, and transitional provisions made for the purposes of introducing the Mental Health Act 2001. The issue in that case was distinct from, and not directly relevant to that in the instant application. But their provisions are nonetheless helpful in order to explain the reasons for this judgment.

Reception Order

5 5. Section 184 of the Act of 1945, (insofar as relevant) identified the procedure then applicable for the application in making of a temporary chargeable patient reception order in an approved institution maintained by what was then a Mental Hospital Authority for a Mental Hospital District, where such person ordinarily resided. It provided that an application might be made either by the husband, wife or relative of the person to whom the application related, at the request of such person, or (subject to certain provisions) by any other person. That section also provided for a certification procedure whereby in a prescribed form an authorised medical officer certified that he had examined the person to whom the application related and outlining the opinion of such medical officer that the person was suffering from mental illness, required not more than six months suitable treatment for his recovery, and that he was unfit on account of his mental state for treatment as a voluntary patient.

Extension or renewal of order

6 6. Section 189 of the Act of 1945, as amended by the Mental Treatment Act, 1961 provided a procedure whereby the period of detention of a temporary patient might be extended on the opinion of the chief medical officer of an approved institution, in circumstances where that officer was of the opinion that the patient would not have recovered during the initial period of six months. It included a power for the chief medical officer to make such order in relation to a patient who would have been detained in an institution under his control, but for such patient being "absent, removed or boarded out" under s. 203, 204, 208 or 209 of the Act of 1945.

7 7. Under s. 208 of the Act, of 1945 it was provided that where a mental hospital authority, acting on the advice of the other resident medical superintendent of their district mental hospital was of opinion that a person detained in a hospital or institution maintained by them required treatment (including surgical treatment), not available otherwise than pursuant to that section, such authority might direct and authorise the removal of such person to any hospital or other place where the treatment was obtainable, and in which the detained person might be received in pursuance of an arrangement under that section. That provision also permitted a medical attendant of a person detained in a mental institution, not maintained by a mental hospital authority to direct and authorise the removal of such a person to any hospital or other place where necessary medical treatment was obtainable and which had agreed to receive him.

8 8. Under s. 208 (5) of the Act, 1945 it was provided:

"A person removed under this section to a hospital or other place may be kept there so long as is necessary for the purpose of his treatment and shall then be taken back to the place from which he was removed, unless it is certified by a registered medical practitioner, that his detention is no longer necessary."

9 9. Thus, to summarise, under the Act of 1945, there obtained a regime whereby a patient might be transferred to an institution where particular medical...