F (E) v Clinical Director of St. Ita's Hospital
| Jurisdiction | Ireland |
| Judge | Mr. Justice O'Keeffe |
| Judgment Date | 21 May 2009 |
| Neutral Citation | [2009] IEHC 253 |
| Court | High Court |
| Docket Number | [No. 816 J.R./2007] |
| Date | 21 May 2009 |
[2009] IEHC 253
THE HIGH COURT
BETWEEN
AND
MENTAL HEALTH ACT 2001 S13(2)
MENTAL HEALTH ACT 2001 S9
RSC O.84 r21
MENTAL HEALTH ACT 2001 S14
HEALTH ACT 2004 S 38(1) SCHED 1
MENTAL HEALTH ACT 2001 S8(3)
MENTAL HEALTH ACT 2001 S9(2)(C)
MENTAL HEALTH ACT 2001 S10(3)(B)
MENTAL HEALTH ACT 2001 S14(1)
MENTAL HEALTH ACT 2001 S2
MENTAL HEALTH ACT 2001 S23(1)
MENTAL TREATMENT ACT 1945
MENTAL HEALTH ACT 2001 (APPROVED CENTRES REGS) 2006 SI 551/2006
MENTAL HEALTH ACT 2001 5(1)
MENTAL HEALTH ACT 2001 66(1)
MENTAL HEALTH ACT 2001 (APPROVED CENTRES REGS) 2006 SI 551/2006 PART 5
CONSTITUTION ART 40
M (A) v KENNEDY & ORS UNREP PEART 24.4.2007 2007/37/7701 2007 IEHC 136
Q (W) v MENTAL HEALTH COMMISSION & ORS UNREP O'NEILL 15.5.2007 2007/52/11134 2007 IEHC 154
McG (P) v MEDICAL DIRECTOR OF THE MATER MISERICORDIA UNREP PEART 29.11.2007 2007/36/7462 2007 IEHC 401
CONDON v MIN FOR LABOUR & AG 1981 1 IR 62
O'BRIEN v PIAB 2007 1 IR 328
RSC O.84 r24
MENTAL HEALTH ACT 2001 S73
McCORMACK v GARDA SIOCHANA COMPLAINTS BOARD 1997 2 IR 489
HALSBURYS LAWS OF ENGLAND 4TH ED REISSUE VOL.1 ADMINISTRATIVE LAW PAR 163
MENTAL HEALTH ACT 2001 S13(2)
HEALTH ACT 2004 S38(1)
M M v CLINICAL DIRECTOR OF CENTRAL MENTAL HOSPITAL UNREP SUPREME 7/5/2008 2008 IESC 31
JOHNS v AUSTRALIAN SECURITIES COMMISSION 1992 FCA 169 1992 FCA 288
MENTAL HEALTH ACT 2004 S75 SCHED 7
MENTAL HEALTH ACT 2004 S59 SCHED 3
O'BRIEN v PIAB 2007 1 IR 328
MENTAL HEALTH
Detention
Assisted admission - Removal to approved centre - Recommendation for involuntary admission - Applicant restrained in public place and removed to hospital - Outside agency engaged for purposes of "assisted admissions" procedure - Applicant not contending detention unlawful - Applicant seeking nominal damages - Whether employees of agency "staff" of approved centre - Whether applicant moved promptly - O'Brien v Personal Injuries Assessment Board [2006] IESC 62 [2007] 1 IR 328 applied; L(R) v Clinical Director of St Ita's Hospital (Unrep, Supreme Court, 15/2/2007), AM v Kennedy [2007] IEHC 136 [2007] 4 IR 667, WQ v Mental Health Commission [2007] IEHC 154 [2007] 3 IR 755, PMcG v Mater Hospital [2007] IEHC 401 [2008] 2 IR 332, Condon v Minister for Labour [1981] 1 IR 62, McCormack v Garda Complaints Board [1997] 2 IR 489, MM v Clinical Director of the Central Mental Hospital [2008] IESC 31 [2008] 4 IR 669 and Johns v Australian Securities Commission [1992] FCA 169 considered - Mental Health Act 2001 (No 25), ss 5, 9, 12, 13 and 73 - Health Act 2004 (No 42), ss 59 and 75 - Mental Health Act 2001 (Approved Centres) Regulations 2006 (SI 551/2006) - Declaration that employees of outside agency not staff of approved centre granted (2007/816JR - O'Keeffe J - 21/5/2009) [2009] IEHC 253
F(E) v Clinical Director of St Ita's Hospital
On 2nd July, 2007 the Applicant was granted leave by the High Court to apply by way of an application for judicial review for the following reliefs.
(i) A Declaration that the application was on 24th April, 2007 removed to St. Ita's Hospital otherwise then in accordance with the provisions of the Mental Health Act 2001 and in particular Section 13(2) thereof.
(ii) A Declaration that the First Named Respondent actedultra vires those powers conferred on him by the Mental Health Act 2001 and in particular Section 13(2) thereof in arranging for the Applicant to be physically restrained and removed to St. Ita's Hospital on 24th April, 2007 by person not members of the Hospital's staff.
(iii) A Declaration that the manner in which the removal of the Applicant was effected and/or the purpose thereof communicated to the Applicant occurred without reasonable care on the part of the Respondent nor otherwise in accordance with law and in the circumstances that prevailed in this case the breach of both the Applicant's Constitutional Rights and those rights available to her pursuant to the European Convention on Human Rights in particular her rights to liberty to freely associate to privacy and to bodily integrity.
(iv) An Order providing for the Applicant's costs.
(v) Such further or other relief as this honourable court considers appropriate.
2. The grounds upon which relief was sought stated as follows:-
2 13.-(1) Where a recommendation is made in relation to a person (other than a recommendation made following an application undersection 12), the Applicant concerned shall arrange for the removal of the person to the approved centre specified in the recommendation.
(2) Where the Applicant concerned is unable to arrange for the removal of the person concerned, the clinical director of the approved centre specified in the recommendation or a consultant psychiatrist acting on his or her behalf shall, at the request of the registered medical practitioner who made the recommendation,arrange for the removal of the person to the approved centre by members of the staff of the approved centre. [Emphasis added]
(3) Where the clinical director of the approved centre or a consultant psychiatrist acting on his or her behalf and the registered medical practitioner who made the recommendation are of opinion that there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, the clinical director or a consultant psychiatrist acting on his or her behalf may, if necessary, request the Garda Síochána to assist the members of the staff of the approved centre in the removal by the staff of the person to that centre and the Garda Síochána shall comply with any such request.
(4) Where a request is made to the Garda Síochána undersubsection (3), a member or members of the Garda Síochána may -
(a) enter if need be by force any dwelling or other premises where he or she has reasonable cause to believe that the person concerned may be, and
(b) take all reasonable measures necessary for the removal of the person concerned to the approved centre including, where necessary, the detention or restraint of the person concerned."
(ii) Following the Respondent deciding that the Applicant should be moved to St. Ita's Hospital, Portrane, County Dublin, the Respondent thereupon, without regard to the terms of the Act which are clear on their face and without reasonable care (should the establishment of same be necessary), procured the arrest and detention of the Applicant by an entity eventually identified to the Solicitor for the Applicant as "Nationwide Health Solutions Limited". The foregoing entity, its servants and agents at the request of the Respondent, physical restrained and engineered the removal of the Applicant from a point outside of a restaurant in Howth, Country Dublin to St. Ita's Hospital, Portrane in the circumstances more particularly set out in the verifying Affidavit filed herewith.
(iii) Following upon correspondence sent by the Applicant's solicitor to both the Respondent and the Mental Health Commission, it became apparent that a Mr. Jim Neville was Nationwide Health Solutions Ltd's "Assisted Admissions Team Leader" who brought the Applicant to St. Ita's. There at the hospital, the Applicant was "received" and "taken charge of" my members of staff of the approved centre, to use the language of the Nationwide Health Solution's Report/Handover of Care form. It appears that there were other members of this "Admissions Team" who assisted Mr. Neville in the physical removal of the Applicant, although the identities of such other persons have not been divulged.
(iv) Neither the aforesaid Limited Liability Company nor Mr. Neville nor any other individual forming part of his "Team" were, at the times material hereto, "members of staff of the approved centre" within the meaning of the Act.
(v) notwithstanding her ability to understand and appreciate such matters on the occasion in question, the Applicant herein was given no or no adequate reason for her removal nor told of the purported lawful basis for same nor the identity of those detaining her nor their (purported) authorisation for so doing.
(vi) In consequence the arrest/detention and restraint of the Applicant procured by the Respondent herein was in breach of a duty owed to the Applicant, and was set in train without reasonable care and otherwise then in accordance with law.
3. The solicitor to the Applicant Ms. Shalom Binchy set out facts concerning the Applicant as follows:-
(i) On 24th April, 2007 an application pursuant to Section 9 of the Mental Health Act 2001, (hereafter referred to as the "2001 Act") was made by the Applicant's brother for a recommendation that she be involuntarily admitted to an approved centre. The recommendation for such a detention was duly made by a registered medical practitioner.
(ii) At 12.30am on the morning of 25th April, 2007 an Involuntary Admission Order in respect of the Applicant was signed by Dr. Malcolm Garland, a Consultant Psychiatrist at St. Ita's Hospital, Portrane.
(iii) The Applicant's solicitor was appointed by the Mental Health Commission to represent the Applicant at a Mental Health Tribunal hearing on 11th May, 2007.
(iv) Prior to the Tribunal hearing, the Applicant stated that she had been forcibly detained by persons on the evening of 24th April having just left a restaurant in Howth. She said that she was most unhappy at the nature of her removal to St. Ita's Hospital. She gave evidence at the hearing that she was "bundled" and "man-handled" into a car having left the restaurant in Howth and that she was bruised as a result. The individuals responsible did not...
To continue reading
Request your trial
-
MYA v Refugee Appeals Commissioner
...beyond their remit as contemplated in the Act’. 9 He submits that O'Keefe J. decided in E.F. v Clinical Director of St Ita's Hospital [2009] IEHC 253 that a statutory function to remove a person to an approved centre could not be delegated to a contractor. That decision seems to me to turn ......