Croke v Smith

• Jurisdiction: Ireland
• Judgment Date: 14 July 1994
• Date: 14 July 1994
• Docket Number: [1994 No. 316SS; S.C. No. 150 of 1994]
• Court: Supreme Court

High Court

Supreme Court

[1994 No. 316SS; S.C. No. 150 of 1994]

Croke v. Smith

In the matter of an inquiry pursuant to Article 40, sub-s. 4 of the Constitution of Ireland

1937

Seán Croke

Applicant

and

Charles Smith, Art O'Connor, The Eastern Health Board, Ireland and The Attorney General

Respondents

Case mentioned in this report:—

Re Shuttleworth (1846) 9 Q.B.D. 651; 2 New Sess. Cas. 470; 16 L.J.M.C. 18; 8 L.T.O.S. 138; 10 J.P. 760; 11 Jur. 41.

Constitution - Detention - Inquiry pursuant to the Constitution - Applicant detained under the Mental Treatment Act - Applicant escaped and re-detained - Applicant transferred to Central Mental Hospital for treatment "not available" in original place of detention - Whether "any hospital or other place" - Whether continued detention lawful - No extension of initial six month reception order - Whether continued detention permissible without extension - Whether detention extended for "so long as it is necessary for the purpose of his treatment" - Mental Treatment Act, 1945 (No. 19), ss. 184, 186, 189 and 208 - Mental Treatment Act, 1961 (No. 7), s. 18 - Constitution of Ireland, 1937, Article 40, sub-s. 4.

Statute - Interpretation - Whether Central Mental Hospital "any hospital or other place" - Mental Treatment Act, 1945 (No. 19), s. 208.

Inquiry pursuant to Article 40, sub-s. 4 of the Constitution.

The facts are summarised in the headnote and fully set out in the judgments of Flood J. and Blayney J., post.

The applicant applied ex parte to the High Court (Flood J.) on the 21st March, 1994, for an inquiry into the legality of his detention in the Central Mental Hospital. An order was made directing the respondents to justify the applicant's detention and was made returnable before the High Court on the 25th March, 1994.

The application was heard by the High Court (Flood J.) on the 25th and 28th March, 1994.

The applicant appealed to the Supreme Court against the judgment and order of the High Court. The appeal was heard by the Supreme Court (Finlay C.J., O'Flaherty, Egan, Blayney and Denham JJ.) on the 14th June, 1994.

Section 184, sub-s. 4 of the Mental Treatment Act, 1945, provides, inter alia:—

"An application under this section shall be accompanied by a certificate in the prescribed form of the authorised medical officer certifying that he has examined the person to whom the application relates on a specified date not earlier than 7 days before the date of the application and is of opinion either—

• (a) that such person -

  • (i) is suffering from mental illness, and

  • (ii) requires, for his recovery, not more than six months suitable treatment, and

  • (iii) is unfit on account of his mental state for treatment as a voluntary patient . . ."

Section 186 of the Act of 1945, provides:—

"(1) Where a temporary chargeable patient reception order or a temporary private patient reception order is made, the following provisions shall have effect:—

• (a) the applicant for the order or any person authorised by him may, not later than seven days after the date on which the order is made, take the person to whom the order relates and convey him to the approved institution mentioned in the order;

• (b) any of the persons specified in sub-section (2) of this section may receive and take charge of the person to whom the order relates and detain him until the expiration of a period of six months from the date on which the order is made or his earlier removal or discharge by proper authority or death and, in case of his escape, retake him within twenty-eight days thereafter (but not after the expiration of the said period of six months) and complete the detention aforesaid.

(2) The persons entitled to receive, take charge of, and retake a person under this section shall be the person in charge of the approved institution mentioned in the relevant reception order and his officers, assistants, and servants and any medical officer of such institution."

Section 189 of the Act of 1945, as amended by the Mental Treatment Act, 1961, provides inter alia:—

"(1) (a) Where the chief medical officer of an approved institution becomes of opinion that a person detained in the institution under a temporary chargeable patient reception order or a temporary private patient reception order (including a person who would be so detained but for his being absent, removed or boarded out under section 203, 204, 208 or 209 of this Act) will not have recovered on the expiration of the period during which, pursuant to paragraph (b) of sub-section (1) of section 186 of this Act,

. . .

(ii) . . . the chief medical officer may by endorsement on the order extend the said period by a further period not exceeding six months, or by a series of endorsements on the order extend the said period by further periods none of which shall exceed six months and the aggregate of which shall not exceed eighteen months.

(b) Where an order is endorsed under this sub-section—

• (i) the chief medical officer shall-

  • (I) give to the person to whom the order relates a notice stating particulars of endorsement and that such person or the applicant for the reception order may send to the Inspector of Mental Hospitals an objection to the extension of the period of detention, and

  • (II) give a like notice to the applicant for the order,

(ii) on receiving an objection sent consequent upon the notice under clause (I) or (II) of the foregoing sub-paragraph, the Inspector of Mental Hospitals shall require the chief medical officer to give him a full report on the person to whom the order relates,

(iii) on being required to give such report, the chief medical officer shall give it forthwith and, on consideration of the report, the Inspector of Mental Hospitals shall take such steps as he considers necessary for ascertaining whether or not the detention of the person to whom the order relates should be continued."

Section 208 of the Act of 1945, provides:—

"(1) Where a mental hospital authority, acting on the advice of the resident medical superintendent of their district mental hospital, are of opinion that a person detained in such hospital or in any other institution maintained by them requires treatment (including surgical treatment) not available save pursuant to this section, the authority may direct and authorise the removal of such person to any hospital or other place where the treatment is obtainable and in which he may be received in pursuance of an arrangement under this section.

(2) Pursuant to the provisions of sub-section (1) of this section, a mental hospital authority and the controlling authority of any hospital or other place where treatment is obtainable may make and carry out an arrangement for the purposes of that sub-section.

(3) Where the medical attendant of a person detained in a mental institution not maintained by a mental hospital authority is of opinion that such person requires treatment (including surgical treatment) not available save pursuant to this section, he may direct and authorise the removal of such person to any hospital or other place where the treatment is obtainable and in which it has been agreed to receive him.

(4) Where a person is removed under this section from a mental institution, a report containing full particulars of the removal shall be given to the Minister not later than three days after the removal.

(5) 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."

Pursuant to the provisions of s. 184, sub-s. 4 of the Mental Treatment Act, 1945, the applicant was received and detained as a temporary chargeable patient on the 1st July, 1993, in St. Ita's Hospital, Portrane, an approved institution maintained by the third respondent under that Act. The application for his reception and detention was supported by the certificate of a registered medical practitioner and the reception order was made by the doctor in charge of the hospital being a person authorised to make a temporary chargeable patient reception order. Within a few days of the making of the reception order the applicant absconded from St. Ita's Hospital and on discovering that he had returned to his mother's home, the resident medical superintendent sent a party of nurses to bring the applicant back to St. Ita's on the 7th July, 1993. The applicant reacted violently and stabbed three of the nurses. He was subsequently returned to St. Ita's Hospital. Following this incident a case conference was held at which it was concluded that St. Ita's Hospital was inappropriate and unsuitable for the administration of the therapeutic programme necessary for the applicant and that the Central Mental Hospital was the only environment available in which a suitable therapeutic regime could be instituted and maintained. Thereafter, the applicant was transferred to the Central Mental Hospital pursuant to s. 208 of the Act of 1945, on the advice of the resident medical superintendent of St. Ita's Hospital who was of opinion that the applicant required treatment "not available" in St. Ita's. The applicant was detained in the Central Mental Hospital thereafter where he continued to receive treatment.

The applicant applied ex parte to the High Court pursuant to Article 40, sub-s. 4 of the Constitution of Ireland, on the 21st March, 1994, for an enquiry into the legality of his detention claiming that his detention in the Central Mental Hospital was unlawful in that:—

• (a) he had been detained for a period in excess of six months since the date of the making of the reception order;

• (b) there had been no or no proper compliance with the procedures for extending the six month period under s. 189 of the Act of 1945, or for the...