EC v Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms. Justice Emily Egan
• Judgment Date: 05 May 2023
• Neutral Citation: [2023] IEHC 226
• Docket Number: [2022/6528P]
• Court: High Court

Between

EC

Plaintiff

and

Health Service Executive

Defendant

And by Order of the Court

The Attorney General and The Mental Health Commission and The Irish Human Rights and Equality Commission

Notice Parties

[2023] IEHC 226

[2022/6528P]

THE HIGH COURT

Constitutional invalidity – Declaratory relief – Mental Health Act 2001 s. 73 – State seeking to strike out the proceedings – Whether the proceedings were in breach of s. 73 of the Mental Health Act 2001

Facts: The plaintiff was detained in the acute psychiatric unit of Tallaght University Hospital. He issued a plenary summons against the defendant, the Health Service Executive (the HSE), representing the interests of the hospital, seeking various declaratory reliefs to the effect that his treatment with depot neuroleptic medication (depot) without his consent and without a proper assessment or determination that he lacked functional capacity to consent to such treatment was unlawful, in breach of s. 57(1) of the Mental Health Act 2001 and in breach of his constitutional rights. The plaintiff sought a declaration that the opinion of his treating psychiatrist to the effect that he lacked functional capacity to consent to such treatment by reason of his mental disorder did not constitute a proper or lawful determination of such lack of capacity sufficient to justify his treatment without consent, and indeed despite his express refusal of treatment. The plaintiff separately sought a declaration that his physical restraint by the HSE for the purposes of administering depot was unlawful and/or breached the provisions of the Mental Health Commission Code of Practice on the Use of Physical Restraint in Approved Centres 2009. A further declaration was sought that if s. 57(1) permitted the treatment given on the basis of the capacity analysis carried out by the HSE, then that section breached the plaintiff’s right under Article 40.3.1 and Article 40.3.2 of the Constitution and under various provisions of the European Convention on Human Rights. Finally, a permanent injunction was sought restraining the HSE from administering depot to the plaintiff and/or restraining the plaintiff for the purposes of administering such medication. The plenary summons also sought damages for negligence, breach of duty, trespass to the person, misfeasance in public office, the negligent infliction of emotional suffering and breach of the plaintiff’s constitutional rights and Convention rights. The first notice party, the Attorney General (the State), applied to the High Court to strike out the proceedings on the grounds that they were in breach of s. 73 of the 2001 Act.

Held by Egan J that insofar as the proceedings sought declaratory relief and damages as against the HSE for the non-consensual treatment of the plaintiff on grounds that same was unlawful as being in breach of s. 57(1) of the 2001 Act or was otherwise in breach of the plaintiff’s constitutional or Convention rights, they required leave of the High Court pursuant to s. 73(1) of the 2001 Act prior to their institution. Egan J held that if the requirement for s. 73(1) leave ultimately prevented the plaintiff from pursuing the case he wished to advance as against the HSE, then his remedy, if any, lay in differently formulated proceedings. Egan J noted that the proceedings involved no challenge to the constitutionality of s. 73; rather, the plaintiff challenged the constitutionality of s. 57(1) of the 2001 Act. Egan J held that leave pursuant to s. 73(1) was not required for the claim which the plaintiff wished to advance as against the State.

Egan J held that the plaintiff may not, in the proceedings, pursue the relief he sought against the HSE. Egan J found that there was no good reason why the plaintiff may not pursue his claim to a declaration of constitutional invalidity as against the State in the proceedings. Egan J refused the State’s application for the dismissal of such part of the proceedings as applied to it.

Application refused.

JUDGMENT of Ms. Justice Emily Egan delivered on the 5 ^th of May, 2023

Introduction

1 . This judgment is delivered in respect of an application by the Attorney General (“the State”) to strike out plenary proceedings on the grounds that they are in breach of s. 73 (“s. 73”) of the Mental Health Act, 2001 (“the 2001 Act”). Section 73 provides:

“73. (1) No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be refused unless the High Court is satisfied:

(a) that the proceedings are frivolous or vexatious, or

(b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.

(2) Notice of an application for leave of the High Court under subsection (1) shall be given to the person against whom it is proposed to institute the proceedings and such person shall be entitled to be heard against the application.

(3) Where proceedings are, by leave granted in pursuance of subsection (1) of this section, instituted in respect of an act purporting to have been done in pursuance of this Act, the Court shall not determine the proceedings in favour of the plaintiff unless it is satisfied that the defendant acted in bad faith or without reasonable care.”

2 . At the time of the commencement of these proceedings the plaintiff, a 42-year-old man, was detained in the acute psychiatric unit of Tallaght University Hospital (“the hospital”). The plaintiff issued a plenary summons against the existing defendant, representing the interests of the hospital (“the HSE”), and his treating psychiatrist (against whom proceedings have since been discontinued) seeking various declaratory reliefs to the effect that his treatment with depot neuroleptic medication (“depot”) without his consent and without a proper assessment or determination that he lacked functional capacity to consent to such treatment was unlawful, in breach of s. 57 (1) of the 2001 Act, (“s. 57 (1)”) and in breach of his constitutional rights.

3 . Section 57 (1) is best understood together with s. 56 of the 2001 Act which, together provide:

“56. In this Part “consent”, in relation to a patient, means consent obtained freely without threats or inducements, where—

(a) the consultant psychiatrist responsible for the care and treatment of the patient is satisfied that the patient is capable of understanding the nature, purpose and likely effects of the proposed treatment; and

(b) the consultant psychiatrist has given the patient adequate information, in a form and language that the patient can understand, on the nature, purpose and likely effects of the proposed treatment.”

“57. (1) The consent of a patient shall be required for treatment except where, in the opinion of the consultant psychiatrist responsible for the care and treatment of the patient, the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering, and by reason of his or her mental disorder the patient concerned is incapable of giving such consent.

(2) This section shall not apply to the treatment specified in section 58, 59 or 60.”

4 . The plaintiff seeks a declaration that the opinion of his treating psychiatrist to the effect that he lacked functional capacity to consent to such treatment by reason of his mental disorder does not constitute a proper or lawful determination of such lack of capacity sufficient to justify his treatment without consent, and indeed despite his express refusal of treatment. The plaintiff separately seeks a declaration that his physical restraint by the HSE for the purposes of administering depot is unlawful and/or breaches the provisions of the Mental Health Commission Code of Practice on the Use of Physical Restraint in Approved Centres 2009 (“the code of practice”). A further declaration is sought that if s. 57 (1) permits the treatment given on the basis of the capacity analysis carried out by the HSE, then that section breaches the plaintiff's right under Article 40.3.1 and Article 40.3.2 of the Constitution and under various provisions of the European Convention on Human Rights (“the Convention”). Finally, a permanent injunction is sought restraining the HSE from administering depot to the plaintiff and/or restraining the plaintiff for the purposes of administering such medication. The plenary summons also sought damages for negligence, breach of duty, trespass to the person, misfeasance in public office, the negligent infliction of emotional suffering and breach of the plaintiff's constitutional rights and Convention rights.

Scope, structure and summary of this judgment

5 . This is an application by the State to strike out the proceedings as having been commenced without leave. The HSE makes no such application and took no active part in this application. This judgment is concerned solely with whether, as presently formulated, the proceedings required such leave and with whether the State is entitled to the order it seeks.

6 . This judgment is not an adjudication upon an application for leave to institute proceedings pursuant to s. 73 (1). The plaintiff made no application before me for s. 73 (1) leave, and indeed positively argued that leave could not, in any case, be granted as his proceedings make no allegation that the hospital acted in bad faith or without reasonable care.

7 . Nor is this judgment, in any sense, an adjudication on whether or not s. 73 is inconsistent with the Constitution in confining an intended plaintiff to proceedings arising out of the lack of bona fides or want of reasonable care. The plaintiff does not advance any challenge to the constitutionality of the section in the present proceedings.

8 . I will commence by setting out...