B v The Mental Health Tribunal

JurisdictionIreland
JudgeMs. Justice Creedon
Judgment Date16 March 2021
Neutral Citation[2021] IEHC 192
Docket Number[2020 No. 459 J.R.]
CourtHigh Court
BETWEEN
B
APPLICANT
AND
THE MENTAL HEALTH TRIBUNAL
RESPONDENT

[2021] IEHC 192

Creedon

[2020 No. 459 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Creedon delivered on the 16th day of March, 2021;
Background
1

The Applicant is referred to only for the purposes of this judgment as B, to protect their identity. In this application for judicial review, the Applicant seeks inter alia an order of Certiorari quashing the decision of the Mental Health Tribunal (the tribunal) dated the 5th June 2020 which affirmed the Admission Order made on the 18th May 2020 (the Admission Order) which authorised the reception detention and treatment of the Applicant in the acute psychiatric unit of Tallaght University Hospital (the approved centre).

2

The Applicant further seeks a declaration that the tribunal misapplied s. 12 of the Mental Health Act 2001 (as amended) (the 2001 Act) when reviewing the validity of the Admission Order.

3

The Applicant, who has a history of mental health difficulties, was involuntarily detained on the 18th May 2020 pursuant to an Admission Order made under the terms of the 2001 Act. On that date, the Applicant was initially detained by Garda Elaine Markham of Tallaght Garda Station pursuant to s. 12 of the 2001 Act. Garda Markham ticked the box at the top of the prescribed Form 3 Application Form to indicate that the application was being made pursuant to s. 12 of the 2001 Act. In section 8 of the form recommending the involuntary admission of the Applicant, the reason noted by Garda Markham for the application was that she was “concerned for mental health. Belief male is mentally unwell and in need of treatment”. She stated at section 9 of the form that the Applicant was observed In public in just a towel around his waist holding a lantern. Talking about wanting to be deported”. Garda Markham signed the Form 3 and indicated that she observed the person at 13:00hrs and she went on to sign Form 3 at 13:15hrs.

4

After being taken into custody on the 18th May 2020 the Applicant was examined by Dr. James Moloney, a general practitioner. In the Form 5 completed by Dr. Moloney he recommended that the Applicant be detained in the approved centre. Dr. Moloney formed the opinion that the Applicant was suffering from a mental disorder within the meaning of s. 3 (1)(b)(i) and (ii) of the 2001 Act, ticking the box on Form 5 which states: -

“Because of the severity of the illness disability or dementia the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of an appropriate treatment that could be given by such admission”.

Dr. Moloney described the Applicant's mental disorder as “ Thought disorganised. Delusional”. Dr. Moloney signed Form 5 recording the time of examination as 13:38hrs and the time of signing the form as 13:50hrs.

5

Later on the 18th May 2020, the Applicant was examined by Prof. Brendan Kelly, Consultant Psychiatrist at the approved centre. Following his assessment, Prof. Kelly approved the Admission Order by completing the prescribed Form 6, detaining the Applicant in the approved centre. Prof. Kelly concluded that the Applicant was continuing to suffer from a mental disorder within the meaning of s. 3(1)(b)(i) and (ii) of the 2001 Act. Prof. Kelly described the applicant's symptoms as Psychotic, delusional, thought disordered, very little insight. Prof. Kelly signed the Admission Order (Form 6) recording the time of examination as 15:30hrs and the time of completing the form as 15:50hrs.

6

On the 5th June 2020, the tribunal reviewed the Admission Order in accordance with s. 18 of the 2001 Act. A preliminary objection was made by the Applicant's solicitor that the Admission Order should not be affirmed because Garda Markham had failed to comply with s. 12 of the Act as there was no evidence to indicate that the Applicant was in danger of causing immediate and serious harm to himself or others. The Applicant's solicitor stated that the alleged non – compliance with s. 12 affected the substance of the Admission Order and caused an injustice to the Applicant. She alleged that there was a procedural flaw on the basis that Forms 5 and 6 recorded that the Applicant was suffering from a mental disorder within the meaning of the “need for treatment” grounds pursuant to s. 3(1)(b)(i) and (ii) rather than the “risk of harm” ground pursuant to s. 3(1)(a).

7

The tribunal noted the application but indicated that it would proceed to hear all the evidence and to rule on the application at the conclusion of the hearing. The Applicant's solicitor agreed to this approach. In its decision dated the 5th June 2020 the tribunal rejected the Applicant's submission that the requirements of s. 12 had not been met. The tribunal, having dealt with the procedural s. 12 objection, affirmed the Admission Order, concluding that the Applicant was suffering from a mental disorder within the meaning of s. 3 (1)(b)(i) and (ii). It is this decision of the tribunal of the 5th June 2020 which the Applicant seeks to impugn in the within proceedings.

8

On the 5th June 2020, Dr. McMonagle, Consultant Psychiatrist, authorised a Renewal Order to detain the Applicant for a period of up to three months. On the 12th June 2020, the Renewal Order was revoked and the Applicant was discharged. On the 13th July 2020 the Applicant was granted leave to bring this application.

9

The Applicant submitted that the issue for determination by this Court is whether the tribunal's treatment of the legal issue raised, in respect of compliance with s.12. was flawed with the consequence that Certiorari and/or a declaration should be granted regarding the decision of the Mental Health Tribunal of the 5th June 2020.

The legislative provisions
10

The relevant legislation is the Mental Health Act 2001 (as amended), hereinafter referred to as “the 2001 Act”. The definition of mental disorder is set out in s. 3 of the Act which states as follows: -

“3. — (1) In this Act “mental disorder” means mental illness, severe dementia or significant intellectual disability where—

(a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, or

(b)(i) because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and

(ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.

(2) In subsection (1)—

“mental illness” means a state of mind of a person which affects the person's thinking, perceiving, emotion or judgment and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons;

“severe dementia” means a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension and memory and which includes severe psychiatric or behavioural symptoms such as physical aggression;

“significant intellectual disability” means a state of arrested or incomplete development of mind of a person which includes significant impairment of intelligence and social functioning and abnormally aggressive or seriously irresponsible conduct on the part of the person”.

11

“Best interests” is defined in s. 4 as follows: -

“4. — (1) In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person), the best interests of the person shall be the principal consideration with due regard being given to the interests of other persons who may be at risk of serious harm if the decision is not made.

(2) Where it is proposed to make a recommendation or an admission order in respect of a person, or to administer treatment to a person, under this Act, the person shall, so far as is reasonably practicable, be notified of the proposal and be entitled to make representations in relation to it and before deciding the matter due consideration shall be given to any representations duly made under this subsection.

(3) In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person) due regard shall be given to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy.

12

The criteria for involuntary admission to approved centres is set out in s. 8 of the Act as follows: -

“8. — (1) A person may be involuntarily admitted to an approved centre pursuant to an application under section 9 or 12 and detained there on the grounds that he or she is suffering from a mental disorder.

(2) Nothing in subsection (1) shall be construed as authorising the involuntary admission of a person to an approved centre by reason only of the fact that the person—

(a) is suffering from a personality disorder,

(b) is socially deviant, or

(c) is addicted to drugs or intoxicants.

(3) The Commission shall, from time to time, issue guidelines for staff in approved centres in relation to the provisions of this section”.

13

The making of a recommendation for involuntary admission is provided for under s. 10 of the Act as follows: -

“10. — (1) Where a registered medical practitioner is satisfied following an examination...

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