H (E) (applicant) Clinical Director of St. Vincent’s Hospital Freyne & Mental Heath Tribunal (respondents)
| Jurisdiction | Ireland |
| Judge | O'Neill J. |
| Judgment Date | 06 February 2009 |
| Neutral Citation | [2009] IEHC 69 |
| Court | High Court |
| Date | 06 February 2009 |
BETWEEN
AND
[2009] IEHC 69
HIGH COURT
MENTAL HEALTH
Detention
Involuntary patient - Previously voluntary patient - Renewal order - Statutory interpretation- Purposive approach - Definition of voluntary patient - Whether applicant had capacity to be voluntary patient -Whether person receiving care and treatment in approved centre but not subject to admission or renewal order and whose presence in approved centre is illegal is excluded from definition of voluntary patient -Best interests of patient - Mental Health Act 2001 (No 25), ss 2(1), 4, 9 ,14 ,15 , 18, 23 and 24 - European Convention on Human Rights Act 2003 (No 20), ss 2(1) - Constitution of Ireland, 1937, Article 40.4.2 - European Convention on Human Rights, article 5(1) - Detention found to be lawful (2009/91SS - O'Neill J - 6/2/2009) [2009] IEHC 69
H(E) v Clinical Director of St Vincent's Hospital
Facts: An inquiry pursuant to Article 40.4.2 of the4 Constitution was directed into the legality of the detention of the application. The applicant was first admitted to the respondent as an involuntary patient and released and then readmitted. She become a voluntary patient for some time and then her status converted to involuntary pursuant to the provision of the Mental Health Act 2001. The issue arose as to the legality of procedures adopted and the change in status and whether the admission order had expired thereby affecting her change in status. The issue arose as to the compatibility of the definition of a voluntary patient with the Constitution and ECHR.
Held by the High Court per O’ Neill J that the applicant had been reliably shown to be of unsound min and that her mental disorder was of a kind and degree warranting compulsory confinement. The procedural safeguards and the procedures required for compliance with Article 5 ECHR were abundantly in place and the detention was regulated in accordance with these. This protection, if it was suspended for a short period, was at all times in the contemplation of the respondent. The definition of voluntary patient within the meaning of the Act was in accordance with Article 5 ECHR and the admission order was in all respects valid. There was no basis for suggesting that the current detention was illegal.
Reporter: E.F.
CONSTITUTION ART 40.4.2
MENTAL HEALTH ACT 2001 S23
MENTAL HEALTH ACT 2001 S24(2)
MENTAL HEALTH ACT 2001 S24(2)(a)
MENTAL HEALTH ACT 2001 S24(3)
MENTAL HEALTH ACT 2001 S18
MENTAL HEALTH ACT 2001 S15(2)
Q (W) v MENTAL HEALTH COMMISSION & ORS 2007 3 IR 755
MENTAL HEALTH ACT 2001 S4
MENTAL HEALTH ACT 2001 S9
MENTAL HEALTH ACT 2001 S14
MENTAL HEALTH ACT 2001 S15
MENTAL HEALTH ACT 2001 S24
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5
MENTAL TREATMENT ACT 1945
L (H) v UK ECHR 2004 1 MHLR 236
CONSTITUTION ART 5.1(e)
JUDGMENT of O'Neill J.delivered on the 6th day of February, 2009
On 21 st January, 2009, I directed an enquiry pursuant to Article 40.4.2 of the Constitution into the legality of the applicant's detention. This enquiry proceeded before me on Friday 30 th January, 2009, and Tuesday 3 rd February, 2009.
The applicant is sixty-eight years of age and suffers from a mixed affective state of vascular dementia. The applicant was first admitted to St. Vincent's Hospital as an involuntary patient on 3 rd June, 2008, and was released on 19 th June, 2008. She was readmitted to the hospital as an involuntary patient on 7 th August, 2008. She remained as an involuntary patient in that hospital until 10 th December, 2008, when the order detaining her was revoked by the Mental Health Tribunal. The reasons stated for the decision by that Tribunal to revoke the order detaining the applicant are as follows:
"A preliminary issue was made by the legal representative regarding the wrong date being in the order. Hence, the Tribunal has no jurisdiction to affirm the order as the documentation is false on the face of it."
The applicant remained a patient in St. Vincent's Hospital after 10 th December, 2008. On 11 th December, 2008, the applicant was given a form entitled 'Notification of Change of Status from Involuntary to Voluntary'. Although the question of whether the applicant was in effect, in law a voluntary patient from 10 th December, 2008, to 22 nd December, 2008, is hotly disputed in this enquiry, the formal basis on which the applicant continued in the hospital and on which she was treated ,was that she was a voluntary patient.
On 22 nd December, 2008, in response to an attempt by the applicant to leave the hospital, the first named respondent moved to convert the applicant's status into that of an involuntary patient by invoking s. 23 of the Mental Health Act 2001 [the Act of 2001]. Under this section, the first named respondent, being of opinion that the applicant was suffering from a mental disorder, detained the applicant for a period not exceeding twenty-four hours. This period of twenty-four hours commenced at 13.00 hours on 22 nd December, 2008.
Pursuant to the provisions of s. 24 (2) of the Act of 2001, the applicant was, on 22 nd December, 2008, at 16.45 hours, examined by another consultant psychiatrist, who certified, pursuant to s. 24(2)(a) that the applicant was suffering from a mental disorder and needed to be detained in the hospital.
Following this, pursuant to s. 24[3] of the Act, and admission order was made by the first named respondent which had the effect of detaining the applicant and to which the provisions of ss. 15-22 of the Act apply.
Pursuant to the provisions of s. 18 of the Act, the applicant's detention on foot of this admission order was reviewed by the second named respondent on 9 th January, 2009. The decision of this Tribunal was to affirm the admission order of 23 rd December, 2008. Subsequently, on 12 th January, 2009, on the expiry of that admission order, a renewal order was made pursuant to s. 15(2) of the Act. That renewal order which is the current legal basis of the applicant's detention, has yet to be reviewed by a Mental Health Tribunal, as required by s. 18 of the Act.
The issue which arises for determination on this enquiry is whether the invoking of s. 23 of the Act on 22 nd December, 2008, and the making of the admission of 23 rd December, 2008, was invalid, on the ground that the detention of the applicant from 10 th December, 2008, to 22 nd December, 2008, was illegal because it is claimed on behalf of the applicant that during that period, she was not a voluntary patient. It is submitted that the applicant was not a voluntary patient because she lacked the capacity to become a voluntary patient and at no time during that period was she free to leave the hospital. As said earlier, the first named respondent vigorously disputes that she was incapable of being a voluntary patient or that she was not free to leave.
In the event that the court concludes that the exercise of the powers given under s. 23 of the Act was invalid, a residual issue arises as to whether or not the applicant can assert such a complaint, having regard to the fact that the admission order had expired on 12 th January, 2009, and whether the judgment of this court in the case of W.Q. v. The Mental Health Commission and Ors. [2007] 3 I.R. 755, should be distinguished.
The following provisions of the Act are relevant:
2 "2. - (1) In this Act, save where the context otherwise requires: -
....
'voluntary patient' means a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order."
Section 4 :
"4. -(1) In making a decision under this Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person), the best interests of the person shall be the principal consideration with due regard being given to the interests of other persons who may be at risk of serious harm if the decision is not made."
Section 9:
2 "9. - (1) Subject to the sub-sections (4) and (6) and section 12 where it is proposed to have a person (other than a child) involuntarily admitted to an approved centre, an application for a recommendation that the person be so admitted may be made through a registered medical practitioner by any of the following:
(a) the spouse or a relative of the person,
(b) an authorised officer,
(c) a member of the Garda Síochána, or
(d) subject to the provisions of sub-section (2), any other person.
(2) The following persons shall be disqualified from making an application in respect of person -
(a) a person under the age of eighteen years,
(b) an authorised officer or member of the Garda Síochána who is a relative of the person or of the spouse of the person,
(c) a member of the governing body, or the staff, or the person in charge of the approved centre concerned,
(d) any person with an interest in the payments (if any) to be made in respect of the taking care of the person concerned in the approved centre concerned,
(e) any registered medical practitioner who provides a regular medical service at the approved centre concerned,
(f) the spouse, parent, grandparent, brother, sister, uncle or aunt of any of the persons mentioned in the foregoing paragraphs (b) to (e), whether of the whole blood, of the half blood or by affinity."
Section 14:
2 "14. - (1) Where a recommendation in relation to a...
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