C v Smith

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd
• Judgment Date: 27 July 1995
• Neutral Citation: [1995] IEHC 6
• Docket Number: 367ss/1995
• Court: High Court
• Date: 27 July 1995

[1995] IEHC 6

HIGH COURT

367ss/1995

C v. SMITH

IN THE MATTER OF AN ENQUIRY PURSUANT TO ARTICLE 40.4 OF THE

CONSTITUTION OF IRELAND 1937

BETWEEN

S C

APPLICANT

AND

CHARLES SMITH, ART O'CONNOR, THE EASTERN HEALTH BOARD, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Synopsis:

CONSTITUTION

Statute

Validity - Lunacy - Patient - Hospital - Detention - Duration - Legality - Treatment of patient - Statutory procedure - Independent periodic review of necessity for detention - Absence of statutory requirement for such review - Detention in Central Mental Hospital - Detention until removal, discharge or death - Case stated to Supreme Court - Constitution of Ireland, 1937, Article 40 - (1995/367 SS - Budd J. - 27,31/7/95)

|C. v. Smith|

LUNACY

Patient

Hospital - Detention - Duration - Legality - Treatment of patient - Statutory procedure - Independent periodic review of necessity for detention - Absence of statutory requirement for such review - Detention in Central Mental Hospital - Detention until removal, discharge or death - Multiple High Court enquiries into lawful ness of detention - Finding that detention was in accordance with law but that law invalid - Case stated to Supreme Court - ~Locus standi~ of applicant - Mental Treatment Act, 1945, ss. 163, 171 and 172 - Constitution of Ireland, 1937, Article 40 - (1995/367 SS - Budd J. - 27,31/7/95)

|C. v. Smith|

PRACTICE

Parties

~Locus standi~ - Statute - Validity - Challenge - Lunacy - Patient - Detention - Duration - Statutory procedure - Independent periodic review of necessity for detention - Absence of statutory requirement for such review - Detention in Central Mental Hospital - Detention until removal, discharge or death - Failure of applicant to invoke statutory procedure to obtain review of state of his mental health - Applicant competent to challenge statute - Constitution of Ireland, 1937, Article 40 - (1995/367 SS - Budd J. - 27,31/7/95)

|C. v. Smith|

1 Judgment of Mr. Justice Declan Budd delivered this 27th and 31st days of July 1995

2 The Applicant is an unemployed man aged 38 who used to reside in the Artane area of Dublin.

3 The first-named Respondent is the Clinical Director of the Central Mental Hospital, Dundrum in the City of Dublin (referred to as the C.M.H.).

4 The second-named Respondent is a Consultant Psychiatrist at the C.M.H.

5 The third-named Respondents are a statutory board having their principal office at Dr. Steevens” Hospital, Dublin. They are responsible for the administration and operation of various types of psychiatric institutions including the C.M.H. and St. Ita's Hospital, Portrane in the County of Dublin.

6 The fourth and fifth-named Respondents are juristic persons and the Attorney General is the proper person to represent the State in this action.

APPLICANT'S HISTORY

7 The Applicant was born on 8th October, 1956 and was brought up in his family home in the Artane area of Dublin. In the early 1980's he was diagnosed as suffering from a mental illness but he was able to lead a fairly normal life residing at home with his parents and enjoying a conventional social life, including being gainfully employed. With the support of his parents, his mental condition was treated and controlled by low doses of medication and by three temporary admissions to St. Ita's Hospital in Portrane. On 1st July, 1993, on the application of his parent, the Applicant was admitted to St. Ita's on foot of a reception order made under Section 184 of the Mental Treatment Act, 1945(referred to as the M.T.A. 1945). He was received and detained as a temporary chargeable patient in St. Ita's Hospital for the purpose of his receiving treatment. Apparently he was reluctant to undergo electro-convulsive therapy and left St. Ita's Hospital after some days in early July 1993 and returned to his home. On or about 7th July, 1993 on the direction of the resident medical superintendent (the R.M.S.) at St. Ita's, a party of nurses was sent to bring the Applicant back to St. Ita's and they called to his home on several occasions. The Applicant shut himself in his bedroom being still unwilling to have electro-convulsive therapy. The Applicant violently resisted the nurses and stabbed three of them. One of the stabbings was nearly fatal. The Applicant was arrested and conveyed to Raheny Garda Station. No criminal charges were preferred against the Applicant. He was removed to St. Ita's Hospital and was subsequently transferred to the C.M.H. under the provisions of Section 208 of the M.T.A. 1945 (as amended). He was detained in Dundrum initially for about a year. He then brought an application to the High Court on the grounds that he was not being lawfully detained in the C.M.H., in particular that he had been detained for a period in excess of six months since the date of the making of the reception order into St. Ita's, and that there had not been compliance with the procedures provided for an extension of the period of six months by virtue of the provisions of Section 189 of the M.T.A. 1945 (as amended). It was held in the High Court that the C.M.H. was a hospital, albeit a psychiatric hospital, which was historically founded to house persons who had committed criminal offences and who had been found by the Courts to be insane according to the criteria of the criminal law; nonetheless, the C.M.H. was a hospital where "treatment not available" in St. Ita's was obtainable and it was held that the Applicant might be lawfully received under the provisions of Section 208: he was presently in receipt of treatment not available in St. Ita's and he was accordingly lawfully detained in the C.M.H. because the time-span of his detention was, by virtue of Section 208(5), coextensive with the duration of his treatment. Flood J. thus decided that the Applicant was in lawful detention in the C.M.H. and would remain so while being treated therein and receiving medical treatment and undergoing medical procedures. He added:-

"I am conscious of the fact that the Applicant's right to freedom is at stake and that this is an enquiry into the lawfulness of his detention. I am, however, satisfied that he is presently in receipt of bona fide treatment. I am further satisfied that the protection afforded to patients against arbitrary and unwarranted detention by Sections 189, 217, 218, 222, 236, 237, 250 and 266 of the Mental Treatment Act, 1945(as amended), while not ideal, are an adequate protection against any form of arbitrary and unlawful detention and give to the Applicant a right to question his continued detention and, if necessary, to bring the matter before the attention of this Court."

8 The Applicant appealed to the Supreme Court and the grounds of appeal included the following paragraphs, inter alia:-

"2. The learned trial Judge erred in law and in fact in holding that the fact that the Applicant had been detained for a period of longer than six months from the time of his original committal did not in itself render his detention unlawful.

7. The learned trial Judge erred in law in holding that Sections 189, 217, 218, 222, 236, 237, 250 and 266 of the Mental Treatment Act, 1945(as amended) provided adequate protection to the Applicant against any form of arbitrary and unlawful detention".

9 The Supreme Court held in an unanimous decision in a judgment delivered on 14th July, 1994 by Blayney J. that, firstly, the fact that the C.M.H. was originally the Central Criminal Lunatic Asylum, and that it still retains its close connection with the criminal law, does not prevent it from also being a psychiatric hospital and being a hospital to which it was lawful to transfer the Applicant under Section 208. Secondly, as it was admitted by the Respondents that the original reception order made on 1st July, 1993 was never extended by the chief medical officer of St. Ita's, (and it was not contended that it could have been so extended by the chief medical officer of the C.M.H.), it followed that prima facie there was not in existence any valid order authorising the detention of the Applicant and accordingly he was entitled to be released. It had been argued in both Courts that, where a person has been moved to another hospital under Section 208, the procedure under Section 189 for granting extensions by endorsing the original order no longer applies, and that the right to detain the person is then simply dependent on the length of time for which he requires treatment. The Supreme Court held that this construction put forward by the Eastern Health Board was incorrect and that the Applicant was entitled to be released. However, Blayney J. went on to say:-

"If the Applicant's present mental condition is such as to warrant the making of a new application for a reception order under Section 184 of the 1945 Act, then it would appear that if his parents are not willing to make such application, urgent consideration should be given to an application being made by the appropriate officers of the Health Board so that a reception order may be made if the chief medical officer sees fit under that section, and possibly a consequential Order under Section 208 with the intention that the treatment which the Applicant is at present receiving, and which the evidence suggests is proving satisfactory, should be continued.

It is important that the people concerned with this matter should clearly understand that this decision and any order consequent upon it which may be made by the Court does not in any way impede such a course of conduct".

10 I have been told by Counsel that the wider grounds contained in paragraph 7 of the Notice of Appeal were not argued before the Supreme Court because the focus was on the lack of a valid extension order after the initial six months had expired.

11 After his release by the Supreme Court on 14th July, 1994, the Applicant returned to his home with his parents. At about...