A.B. v Clinical Director of St.Loman's Hospital

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 03 May 2017
• Neutral Citation: [2017] IEHC 360
• Court: High Court
• Docket Number: [Record No. 2016/469 JR]
• Date: 03 May 2017

[2017] IEHC 360

THE HIGH COURT

Binchy J.

[Record No. 2016/469 JR]

BETWEEN

A.B.

APPLICANT

AND

THE CLINICIAL DIRECTOR OF ST. LOMAN'S HOSPITAL, THE HEALTH SERVICE EXECUTIVE, THE MINISTER FOR HEALTH, THE ATTORNEY GENERAL, IRELAND

RESPONDENTS

AND

THE MENTAL HEALTH COMMISSION

THE IRISH HUMAN RIGHTS EQUALITY COMMSSION

NOTICE PARTIES

Health – S. 15 of the Mental Health Act, 2001 – Long duration of renewal orders – Art. 40 of the Constitution – S. 3 of the European Convention on Human Rights Act, 2003 – Mental disorder – Effective remedy – Locus standi – Art. 3 of the European Convention on Human Rights ('Convention').

Facts: The applicant had been subject to various orders of preventive detention in the mental health facility of the first respondent. The applicant sought an order of certiorari to quash the order of the Mental Health Tribunal ('Tribunal') that affirmed the authorisation of the applicant's consultant psychiatrist and extended the applicant's detention for a period of 12 months. The applicant also sought a declaration that s. 3(1)(a) and s. 18 of the Mental Health Act 2001 was repugnant to art. 40 of the Constitution and incompatible with arts. 3 and 5 of the Convention. The applicant argued that his detention in the psychiatric ward of the first respondent's facility amounted to breach of his constitutional rights as he had recovered from the particular episode that led to his admission to the said facility as recommended by the uncontroverted evidence of his consultant psychiatrist. The applicant further averred that there was no statutory provision under the 2001 Act, whereby the Tribunal could reconsider the legality of its decision. The respondents argued that the applicant had no locus standi to challenge the constitutionality of the Act of 2001 as he had not advanced any argument that his interests were affected by the operation of that statute. The applicant claimed that all he needed was to transfer him from the hospital to a full-time residential placement.

Mr. Justice Binchy refused to grant the desired reliefs to the applicant. The Court, however, held that it would suo moto grant a declaration to the effect that the applicant's detention in the hospital should be restricted for a period of 9 or 10 months. The Court pointed out that the applicant had no issues with the validity of his detention and the procedures by which the Tribunal arrived at its decision, and therefore, the said decision was not liable to be quashed. The Court held that the applicant had no locus standi to challenge the validity of the 2001 Act as he had failed to show how he was adversely affected by the operation of that Act. The Court rejected the argument put forward by the respondents that the applicant should have first applied for an appeal in the Circuit Court against the Tribunal's order prior to filing the present judicial review proceedings. The Court stated that given the limited nature of that appeal and absence of any mechanism for review of the Tribunal's order in the Act of 2001, the applicant instituted the judicial review proceedings. The Court pointed out that neither an application under art. 40 of the Constitution nor an application for judicial review provided redressal of the applicant's complaint under arts. 5 & 4 of the Convention. The Court observed that arts. 5 & 4 of the Convention entitled a person to apply to the Court at regular interval from release of detention if that person thought that he had sufficiently recovered from the condition giving rise to that detention.

JUDGMENT of Mr. Justice Binchy delivered on the 3rd day of May, 2017.

1 The applicant has been the subject of a number of orders made pursuant to s. 15 of the Mental Health Act, 2001 ('the Act of 2001') authorising his detention by the first and second named respondents on the grounds that he has been found to be suffering from a mental disorder as defined in s. 3 of the Act of 2001, and that his detention is necessary. Most recently, the applicant is the subject of an order made by the first named respondent on 13th September, 2016 and affirmed on 28th September, 2016 by a Tribunal established by the first notice party pursuant to s. 17(1) of the Act of 2001, which authorises his further detention, without further review, until 12th September, 2017. By these proceedings, the applicant seeks:

(i) An order of certiorari quashing the twelve month renewal order made on 13th September, 2016 authorising the further detention of the applicant until 12th September, 2017;

(ii) If necessary, a declaration that insofar as s. 3(1)(a) and s.18 of the Act of 2001 authorised the applicant's detention up until 13th September, 2016, and s. 3(1)(b) and s.18 of the Act of 2001 continues to authorise his detention up until 12th September, 2017, the said sections are (i) repugnant to Article 40 of the Constitution or (ii) incompatible with Articles 3, 5, 8, 13 and 14 of the European Convention on Human Rights ('the Convention').

Background

2 In her affidavit of 24th June 2016, sworn in support the applicant's application for leave to take proceedings by way of judicial review, the applicant's mother, Mrs B., gives a detailed account of the applicant's background generally, as well as the background to these proceedings. The applicant suffers from an intellectual disability. In his early teens, he was diagnosed with hyperkinetic conduct disorder, specific speech articulation disorder, mild to moderate retardation and ataxia. As a consequence, his behaviour has been, from time to time, marked by aggressive incidents. According to an affidavit sworn by the applicant's mother, Mrs. B., when the applicant was fifteen years of age an incident occurred in which he broke all the windows in her parents' cottage with the consequence that he spent two weeks in the psychiatric unit of St. Loman's hospital. Mrs. B. deposes that she had difficulty securing appropriate therapy for the applicant and that as a result of the failure to provide him with a specifically designated special needs assistant while he was in school, he was effectively precluded from benefiting from education between 1996 and 1999. He also lost out, according to Mrs. B., on speech therapy that would have been available to him in the school environment during those years, although for a period Mrs. B. was successful in providing the applicant with speech therapy on a private basis, until the therapist secured employment elsewhere and Mrs. B. was unable to find a replacement.

3 Mrs. B. deposes that she sought behavioural therapy for the applicant from the State, but that this was not provided. She avers that when the applicant left school at the age of eighteen he had to wait a period of a year in order to secure a place in a resource centre, which was a day centre, in order to further his education. While attending that centre, it was necessary for him to be provided with a personal assistant at all times, but eventually the centre could not cope with the applicant because he did not conform to its routine. He was then transferred to GALRO support services, a private organisation which provides support to people with special needs. When the applicant reached twenty-five years of age, they advised that he should be living independently and not with his family, where he had continued to reside until that time. Supported by GALRO, the applicant moved into a house with two older men for approximately two months before moving back into the family home. He also worked picking up golf balls in a golf club and on a farm but unfortunately this employment came to an end for a variety of reasons.

4 Mrs. B. avers that in recent years the applicant has shown an escalation in violent behaviour towards others, and in particular towards family members. It became impossible for the family to cope with him living at home. The applicant was provided with a house with twenty-four hour care, but after twelve months those support services were withdrawn and he came under a 'community care' model. The result of this according to Mrs. B. was that the applicant was given more freedom than he was able to cope with. He secured a job on a farm and was supposed to work from 10am to 1pm but often did not attend. This employment came to an end as a result of an alleged assault by the applicant on the farmer. The applicant has made numerous attempts to take his own life. In 2013, he overdosed three times on his prescribed medication having hoarded the medication in order to do so. On one occasion he was admitted to intensive care for four days. In 2014, the applicant's behaviour deteriorated further and he had what his mother describes as outbursts of unacceptable and violent behaviour, necessitating the applicant's mother to make an application for a safety order against the applicant.

5 In 2015, the applicant was provided with only five hours support a day and Mrs. B. was pressing the third named defendant to provide more. She avers that during 2015 the applicant was the victim of several instances of sexual abuse by a male. She exhibits correspondence from the Muiríosa Foundation (an organisation providing a range of services to persons with intellectual disabilities and their families) dated 7th January, 2015 indicating that from 19th January, 2015, the applicant would have forty-three hours per week support care. Mrs. B. exhibited a letter from the applicant's general practitioner dated 20th January, 2015 which summarised the applicant's aggressive tendencies, his tendency not to take his medication and states that he is a very real danger to himself and to others. He stated that the applicant's family could no longer cope. He concluded by saying that if the applicant is not placed in long-term residential full-time support, this could result in a fatality.

6 In May 2015, the applicant suffered a serious psychotic episode for the...