G (P) v Branigan
| Jurisdiction | Ireland |
| Judge | Mr. Justice McCarthy |
| Judgment Date | 12 December 2008 |
| Neutral Citation | [2008] IEHC 450 |
| Court | High Court |
| Docket Number | [2008 No. 1791 SS] |
| Date | 12 December 2008 |
[2008] IEHC 450
THE HIGH COURT
BETWEEN
AND
AND
CONSTITUTION ART 40.4
MENTAL HEALTH ACT 2001 S24(1)
MENTAL HEALTH ACT 2001 S17(1)(C)
MENTAL HEALTH ACT 2001 S18(1)
MENTAL HEALTH ACT 2001 S18(1)(A)
MENTAL HEALTH ACT 2008 S4
MENTAL HEALTH ACT 2001 S14(1)(A)
MENTAL HEALTH ACT 2001 S15(1)
MENTAL HEALTH ACT 2001 S15(2)
MENTAL HEALTH ACT 2001 S18(4)
MENTAL HEALTH ACT 2001 S17(1)(A)
MENTAL HEALTH ACT 2001 S17(1)(B)
MENTAL HEALTH ACT 2001 S18(2)
MENTAL HEALTH ACT 2008 S4(1)
MENTAL HEALTH ACT 2008 S4(2)
MENTAL HEALTH ACT 2008 S4(5)
MENTAL HEALTH ACT 2001 S18(1)(B)
MENTAL HEALTH ACT 2001 S28(5)
M (S) v MENTAL HEALTH CMSR & ORS UNREP MCMAHON 31.10.2008 2008 IEHC 441
MENTAL HEALTH ACT 2001 S17
MENTAL HEALTH ACT 2001 S18
D (M) v CLINICAL DIRECTOR OF ST BRENDAN'S HOSPITAL & GANNON UNREP PEART 24.5.2007 2007/13/2613 2007 IEHC 183
D (M) v CLINICAL DIRECTOR OF ST BRENDAN'S HOSPITAL & GANNON UNREP SUPREME 27.7.2007 2007/13/2594 2007 IESC 37
MENTAL HEALTH
Detention
Mental health tribunal - Replacement renewal order - Replacement renewal order of short duration - Review of replacement renewal order - Expiry of replacement renewal order before review -Whether mental health tribunal has power to review replacement renewal order after expiry of replacement renewal order - Whether review required of replacement renewal order of short duration - Whether renewal order lawful - Mental Health Act 2001 (No 25), ss 3, 4, 9, 17, 18, 23, 24 and 28 - Mental Health Act 2008 (No 19), s 4 - Detention lawful (2008/1791SS - McCarthy J - 12/12/2008) [2008] IEHC 450
G(P) v Branigan
Facts: An inquiry was initiated into the lawfulness of the detention of the applicant. The applicant was the subject of an admission order at night whereby she became an involuntary patient and the actual admission order was made the following day. The Mental Health Tribunal affirmed the admission order made. The order became spent and a renewal order was made, which again was affirmed. Prior to that order being spent, the Mental Health Act 2008 was passed, which gave rise to a replacement renewal order. The issue arose as to whether the applicant was deprived of the benefit of a review of the replacement renewal order become of the fact that no review had take place on account of the procedure prescribed at that time. The issue arose as to the operation of ss. 17 & 18 of the Act of 2001, as amended and the provision for a review.
Held by McCarthy J. that a period of five working days was afforded in which to act in terms of making a replacement order and the previous order by the Act was continued for that period. The period of detention was of such brevity so as to exclude the requirement for review of the replacement renewal order and the renewals thereafter were lawful.
Reporter: E.F.
JUDGMENT delivered by Mr. Justice McCarthyon the 12th day of December, 2008
1. This is an inquiry pursuant to the provisions of Article 40.4 of the Constitution as to the lawfulness of the detention of the applicant at St. Michael's Unit, South Tipperary General Hospital, in the custody of either Dr. Branigan or Dr. Zubaidah O'Leary, each Consultant Psychiatrists and the former Clinical Director of that Unit (which is a psychiatric unit in the hospital). The inquiry was substantively heard on the 27 th November.
2. The relevant facts are straightforward and are not in dispute although there are a number of affidavits before me. The grounding affidavit in respect of the application is that of the applicant's solicitor, Finbarr Phelan. This is brief but it exhibits certain documents relevant to the proceedings to which I shall refer below. There is a certificate justifying the detention executed by Dr. Zubaidah O'Leary dated the 23 rd November, 2008, and an affidavit by her of the 24 th November, 2008, and also of Dr. Michelle Branigan. Much of the latter affidavits pertain to the mental health of the applicant in a substantive way, something which does not arise for immediate consideration. It is noteworthy that at para. 5 of Dr. Branigan's affidavit she agrees with what I might shortly term the chronology of events which may be seen from Mr. Phelan's affidavit, with special reference to the series of orders made pertaining to the applicant's detention, under the Mental Health Act, 2001, as amended by the Mental Health Act, 2008.
3. The sequence of events (and relevant documents) are as follows:-
2 (1) On the 27 th July, 2008 the applicant was made the subject of an admission order whereby she became an involuntary patient in the hospital. This detention was from 15.15 on 26 th July, 2008 pursuant to s. 23(1) of the 2008 Act and the actual admission order was made the following day at 10.30 a.m. It might be said in passing (because it is not further relevant to this case) that under s. 24(1) of the 2001 Act, there is power to detain what might, up to that time, have been voluntary patients (as was the applicant) and for up to twenty-four hours.
3 (2) Subsequent to the admission order of 27 th July, 2008, and after an examination by an independent consultant psychiatrist as contemplated by s. 17(1)(c) of the 2001 Act, a Mental Health Tribunal on 15 th August, 2008affirmed the admission order made on the previous 27 th July, pursuant to s. 18(1) of the 2001 Act.
(3) In as much as the admission order merely permitted the applicant to be detained for up to twenty-one days, that order was spent on 15 th August, 2008 and a renewal order was made providing for the applicant's detention for "a period not exceeding" three months.
(4) On 4 th September, 2008, a Mental Health Tribunal affirmed that renewal order pursuant to provisions of s.18(1)(a) of the Act of 2001, and prima facie that renewal order would have been spent on 14 th November, 2008.
(5) Before the order of the 15 th August, 2008 was spent, and on 30 th October, 2008, the Mental Health Act, 2008 was passed and this gave rise to the issue of a replacement renewal order pursuant to s. 4 thereof, being in all respect equated to a renewal order, in replacement for that made on 15 th August, 2008 and for the unexpired balance of the latter. This has been described as being for a period of ten days.
(6) In any event on the 14 th November, 2008 a further renewal order was made, after which an independent medical examination took place and the earlier order was affirmed on 18 th November, 2008. It is for a period of six months ending on 13 th May, 2009.
4. I turn now to the Acts. Under s. 14(1)(a) of the Act of 2001, a consultant psychiatrist may make "an involuntary admission order" ("an admission order") and s. 15(1) of the Act provides that an admission order "shall authorise the reception, detention and treatment of the patient concerned and shall remain in force for a period of twenty-one days from the date of the making of the order and, subject to subsection (2) and 18(4) shall then expire". Subsection (2) contemplates a renewal order andsubsection 18(4) contemplates certain extensions for up to two periods of fourteen days in circumstances not relevant to these proceedings. Copies of any admission order or renewal order must be sent to the Mental Health Commission and "as soon as possible" must refer the matter to "a Mental Health Tribunal", pursuant to the provisions of s. 17(1)(a) of the 2001 Act, must thereafter assign a legal representative to represent the patient, (s. 17(1)(b)), directing in writing the consultant psychiatrist to examine the patient, interview the psychiatrist responsible for the care and treatment of the patient and review the records in relation to her (pursuant to s. 17(1)(c) again of the 2001 Act). By the same subsection, the psychiatrist appointed must report in writing to the tribunal within fourteen days. Section 18, especially subs. (1) and (2) thereof are of particular significance in the present context and those provisions are as follows:-
2 "18(1) Where an admission order or a renewal order has been referred to a tribunal under section 17, the tribunal shall review the detention of the patient concerned and shall either
(a) if satisfied that the patient is suffering from a mental disorder, and
(i) that the provisions of sections 9, 10, 12, 14, 15 and 16, where applicable, have been complied with, or
(ii) if there has been a failure to comply with any such provision, that the failure does not affect the substance of the order and does not cause an injustice, affirm the order, or
(b) if not so satisfied, revoke the order and direct that the patient be discharged from the approved centre concerned.
(2) A decision under subsection (1) shall be made as soon as may be but not later than 21 days after the making of the admission order concerned or, as the case may be, the renewal order concerned.
5. For reasons which need not concern us here on 30 th October, 2008, the Mental Health Act of this year was enacted and it contemplates "replacement renewal orders". By s. 4(1) where a patient is the subject of an unexpired renewal order, and the consultant psychiatrist responsible for her care and treatment carries out an examination before the expiry of five working days from the entry into the force of the Act, may inter alia make an order replacing:-
"... the unexpired renewal order in respect of the patient for a specified period not exceeding the period remaining unexpired, as at the date of the making of the order of this paragraph...".
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