C (C) (plaintiff) v Clinical Director of St Patrick’s Hospital

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,,Mr. Justice McMahon
• Judgment Date: 06 February 2009
• Neutral Citation: [2009] IEHC 13,[2009] IEHC 47
• Court: High Court
• Docket Number: 2034/2008,[2009 No. 81 SS]
• Date: 06 February 2009

[2009] IEHC 13

THE HIGH COURT

2034/2008

C (C) v Clinical Director of St Patrick's Hospital & Mental Health Commission

BETWEEN

C.C.

PLAINTIFF

AND

CLINICAL DIRECTOR OF ST. PATRICK'S HOSPITAL AND THE MENTAL HEALTH COMMISSION

DEFENDANTS

CONSTITUTION ART 40.4

MENTAL HEALTH ACT 2001 S9

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S18

MENTAL HEALTH ACT 2001 S13

MENTAL HEALTH ACT 2001 S15

MENTAL HEALTH ACT 2001 S12

MENTAL HEALTH ACT 2001 S10

L (R) v CLINICAL DIRECTOR OF ST BRENDAN'S HOSPITAL (ROHILL) & MENTAL HEALTH CMSN UNREP FEENEY 17.1.2008 2008 IEHC 11

MENTAL HEALTH ACT 2001 S13(2)

H (J) v CLINICAL DIRECTOR OF JONATHAN SWIFT CLINIC, ST JAMES'S STREET HOSPITAL (LAWLOR) UNREP PEART 25.6.2007 2007/27/5543 2007 IEHC 225

CONSTITUTION ART 40.4.2

W (F) v DEPARTMENT OF PSYCHIATRY JAMES CONNOLLY MEMORIAL HOSPITAL UNREP HEDIGAN 18.8.2008 2008 IEHC 283

CONSTITUTION ART 40

STORCK v GERMANY 2006 43 EHRR 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5.1

CONSTITUTION ART 44

MENTAL HEALTH

Detention

Unlawfulness - Inquiry - Whether alleged unlawful detention by gardaí tainted subsequent detention - Absence of details of garda involvement - Powers of gardaí under legislation - Alleged excess of powers - Legislative safeguards - Statutory obligations - Absence of mala fides - Absence of conscious breach of rights - Validity of admission order - Lack of awareness of illegality of initial detention - Whether lawfulness of detention affected when issue raised before tribunal - Jurisdiction of tribunal - Participation in process - Modification of duty to release from unlawful detention where incapacity - Whether clinical director acted reasonably and in accordance with law - Ability to bring separate legal proceedings regarding initial wrongful detention - Whether tribunal should have ordered release - Statutory creature - Failure to direct complaint to clinical director - L(R) v Clinical Director of St Brendan's Hospital [2008] IEHC 11 (Unrep, Feeney J, 17/1/2008), JH v Lawlor [2007] IEHC 225 [2008] 1 IR 476, State (McDonagh) v Frawley [1978] IR 131 and W(F) v James Memorial Connolly Hospital [2008] IEHC 283 (Unrep, Hedigan J, 18/8/2008) considered; Storck v Germany (2006) 43 EHRR 6 distinguished - Mental Health Act 2001 (No 25), ss 9, 13, 14, 15 and 18 - Constitution of Ireland 1937, Article 40.4.2 - Detention found to be lawful (2008/2034SS - McMahon J - 20/1/2009) [2009] IEHC 13

C(C) v Clinical Director of St Patrick's Hospital

Facts: the applicant had been initially unlawfully detained and delivered to the hospital by the gardaí when the respondent made an admission order pursuant to section 14 of the Mental Health Act 2001 on the basis that she was suffering from a mental disorder. Subsequently a renewal order was made by the respondent pursuant to section 15 of the Act of 2001. She sought a declaration that she was unlawfully detained contrary to Article 40.4 of Bunreacht na hÉireann on the basis that the initial unlawful detention by the gardaí had tainted the subsequent detention by the respondent.

Held by Mr Justice McMahon in refusing the applicant the relief sought that the general rule was that when a person was in custody or detained by another person and it transpired that the original custody was unlawful the person detained must be released forthwith. But where the person detained was under an incapacity or was vulnerable in some other way, the duty to immediately release the person had to be modified in the circumstances. To release a person suffering from an incapacity or a vulnerable person from unlawful detention without first considering the personal circumstances, including the time and the location of the release, was a breach of duty to such a person which could attract liability under the neighbour principle at common law if foreseeable damage ensued and that duty had to be balanced with the duty to release the wrongfully detained person immediately and could result in a detention for a further short period to ensure a safe and reasonable release.

That, without any knowledge by the respondent of any irregularity in the history of how the applicant came to be presented to the hospital, the initial illegal detention by the gardaí did not affect the subsequent process put in motion by the respondent which resulted in the applicant being committed as the continuance and survival of the admission order was to be assessed, not by the possibility of some historical frailty causally unconnected with the respondent's determination, but on its own terms and in its own context, that being the Mental Health Act 2001. On the facts, therefore, the detention of the applicant was lawful.

Reporter: P.C.

1 Mr. Justice McMahonon the 20th day of January, 2009

2 This is an application on behalf of the applicant for a declaration that the applicant is unlawfully detained by the first respondent contrary to Article 40.4 of the Constitution. The essence of the applicant's case is that prior to her arrival at the respondent's hospital, she was initially detained by the gardaí and unlawfully removed to the hospital by them. The applicant argues that this alleged unlawful detention by the gardaí, has tainted the subsequent detention by the respondents even though, by and large, apart from this initial reception the respondents have meticuiously followed the proper procedures for dealing with such persons as set out in the legislation and the Mental Health Act 2001 in particular.

The facts

3 The essential facts are not in dispute, they are set out in the affidavit of Dr. Seamus O'Cealleagh, (the Consultant Psychiatrist, but not the Clinical Director) the relevant portion of which I now reproduce:-

4 2 "3. The applicant is a 69 year old woman who suffers from bi-polar affective disorder which was diagnosed in 1984. She has had eight previous admissions to St. Patrick's hospital and at least two previous admissions to St. John of God's Hospital. She also suffers from diabetes and is taking regular required medications in respect of her bi-polar affective disorder and her diabetes.

5 4. The applicant's husband, Mr. Fergus Coady, made an application pursuant to s. 9 of the 2001 Act, at 21.24 pm on the 8 ^th December. The applicant had stated that the Holy Spirit and Our Lady had directed her to stop taking her medication.

6 5. The applicant's GP, Dr. Patrick Feeney, made a recommendation on the 8 ^th December, at 21.26 pm. Sometime thereafter she was brought by the gardaí to the hospital and arrived and was admitted at 00.45 on the 9 ^th December. I do not know who contacted the gardaí. I and other members of the staff at the hospital have made inquiries and, to my best knowledge and belief, the gardaí were not requested or instructed to remove the applicant to the hospital by any members of the hospital staff. Further, to my best knowledge and belief, Dr. Feeney did not make any request of any member of the hospital staff to involve the gardaí.

7 6. I made the admission order pursuant to s. 14 of the Mental Health Act 2001, in respect of Mrs. Coady on the 9 ^th December, 2008, at 17.30 pm. It was made on the basis that the applicant was suffering from mania and with psychotic features, a mental disorder within the meaning of the 2001 Act, and because of the severity of the illness andas her judgment was so impaired that a failure to admit her to an approved centre would be likely to result in a deterioration in her condition and would prevent the administration of appropriate treatment that could be given only by such admission and because her reception, detention and treatment at an approved centre would be likely to be of benefit to her and/or would alleviate her condition to a material extent. The applicant was and is acutely psychiatrically unwell and required at the time and continues to require inpatient treatment at an approved centre in her best interests. It would not be in the applicant's best interests for her to be discharged from an approved centre at this point in time. An independent medical examination took place by Dr. Raju Bangaru, on the 12 ^th and 15 ^th December, 2008. He was of the view that the applicant was manic, was non compliant with her medications and had limited insight and required further inpatient treatment. I refer to the relevant medical records related to the applicant's current admission stapled together and upon which I have marked my initials J.L.

8 7. The Mental Health Tribunal had affirmed this order pursuant to s. 18 of the 2001 Act, on the 19 ^th December, 2008. The Tribunal considered a preliminary issue raised by the applicant's solicitor, Mr. Fay, and gave a preliminary ruling stating that 'an apparent breach of s. 13 during the admission procedure did not render the admission void'.

9 8. A renewal order pursuant to s. 15 of the 2001 Act was made by Dr. O'Cealleagh at 16.45 on the 19 ^th December, 2008, for a period offour weeks. This renewal order expires on the 16 ^th January, 2009. An independent medical examination took place by Dr. Raju Bangaru late yesterday evening, 29 ^th December, 2008.

10 9. I am fully mindful and caring of the best interest of the applicant. I and all of my colleagues who have treated her remain convinced that it is in the best interest of the applicant to detain her in the current hospital environment."

11 From this affidavit it is clear that the respondents are strangers to what went on immediately before the applicant was brought to the hospital. All that is known is that the applicant was brought to the hospital by the gardaí and was admitted at 00.45 on the 9 ^th December, 2008. (There is a note to that effect in the hospital records).

12 The applicant's solicitor states in an...