E.H. v Clinical Director of St Vincent's Hospital

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 28 May 2009
• Neutral Citation: [2009] IESC 46
• Court: Supreme Court
• Docket Number: [S.C. No. 74 of 2009]
• Date: 28 May 2009

[2009] IESC 46

THE SUPREME COURT

Murray CJ.

Fennelly J.

Kearns J.

Macken J.

Finnegan J.

[No. 094 of S.C./2009]

H (E) v Clinical Director of St Vincent's Hospital (Freyne) & Mental Health Tribunal

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN

E. H.

APPLICANT

AND

THE CLINICAL DIRECTOR OF ST. VINCENT'S HOSPITAL, AIDEEN FREYNE AND THE MENTAL HEALTH TRIBUNAL

RESPONDENTS

CONSTITUTION ART 40

CONSTITUTION ART 40.4

MENTAL HEALTH ACT 2001 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

MENTAL HEALTH ACT 2001 S23

MENTAL HEALTH ACT 2001 S24

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S2(1)

CONSTITUTION ART 40.4.2

L (R) v CLINICAL DIRECTOR OF ST BRENDANS HOSPITAL & ORS UNREP SUPREME 15.2.2008 (EX TEMPORE)

CUDDEN v CLINICAL DIRECTOR OF ST BRIGIDS HOSPITAL UNREP SUPREME 13.3.2009 (EX TEMPORE)

GOODEN v ST OTTERANS HOSPITAL 2005 3 IR 617 2001/11/2896

MENTAL HEALTH ACT 2001 S4(1)

MENTAL HEALTH ACT 2001 S4

MENTAL HEALTH ACT 2001 S9

MENTAL HEALTH ACT 2001 S15

MENTAL HEALTH ACT 2001 S18

MENTAL HEALTH ACT 2001 S29

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

L (H) v UNITED KINGDOM 2005 40 EHRR 32 2004 MHLR 236

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5.1(E)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5.4

MENTAL TREATMENT ACT 1945 S194

MENTAL HEALTH ACT 2001 S24(3)

MENTAL HEALTH ACT 2001 S12

MENTAL HEALTH ACT 2001 S17(1)(B)

MCDONAGH, STATE v FRAWLEY 1978 IR 131

MENTAL HEALTH

Detention

Involuntary patient - Previously voluntary patient - Renewal order - Statutory interpretation - Definition of voluntary patient - Whether applicant had capacity to be voluntary patient - Best interests of patient - Legal challenge to detention of patient not warranted unless best interests of patient demand - Gooden v St Otteran's Hospital (2001) [2005] 3 IR 617 approved; State (McDonagh) v. Frawley [1978] IR 131 followed - Mental Health Act 2001 (No 25), ss 2(1), 4(1), 9 ,14(1) ,15(1) , 18(1), 23(1), 24 and 29 - 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) - Applicant's appeal dismissed (74/2009 - SC - 28/5/2009) [2009] IESC 46

H(E) v St Vincent's Hospital

Facts: The applicant sought to appeal an order of the High Court refusing to discharge the applicant from detention at St. Vincent's Hospital. The applicant sought inter alia a declaration that she was not a truly "voluntary patient" and that the definition of voluntary patient in s. 2 Mental Health Act 2001 was incompatible with Article 5 ECHR. The applicant contended that she was not a "voluntary patient" within the meaning of the Act as she had a mental disorder that was clearly demonstrated and that she had been prevented from leaving and had been denied protections afforded by the Act for a period of time.

Held by the Supreme Court per Kearns J. (Murray CJ, Fennelly, Macken, Finnegan JJ. concurring), that all of the statutory protections and procedures alleged to be absent were fully restored. The trial judge had ample evidence that the applicant was a voluntary patient within the meaning of the Act. If the applicant was denied procedural protections, she had not been removed from the protection of the Act. The first named respondent maintained a very high level of supervision of the condition of the applicant. The appeal was moot. The proceedings were initiated and maintained on purely technical and unmeritorious grounds. The reliefs sought would be refused and the appeal dismissed.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Kearnsdelivered the 28th day of May, 2009

2 Judgment delivered by Kearns J. [nem diss]

3 This is an application under Article 40 of the Constitution by way of appeal from the order of the High Court (O'Neill J.) dated 24 ^th February, 2009 which refused to discharge the applicant from detention at St. Vincent's Hospital in Dublin. In this appeal the applicant seeks:-

4 (a) An order that the applicant's detention at St. Vincent's Hospital, Dublin is not in accordance with law and/or that such detention is contrary to the provisions of Article 40.4 of the Constitution of Ireland.

5 (b) A declaration that the applicant by reason of her incompetence was not a truly voluntary patient in St. Vincent's Hospital from 10 ^th December, 2008 to 22 ^nd December, 2008.

6 (c) A declaration that the definition of "voluntary patient" in s.2 of the Mental Health Act 2001 as found by the High Court herein is incompatible with the provisions of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended.

7 At the culmination of the inquiry conducted in the High Court the learned High Court judge concluded, for the reasons set out in his judgment delivered on 6 ^th February, 2009, that the applicant's detention in St. Vincent's from 22 ^nd December, 2008 onwards was lawful. He took the view that the issue as to whether a prior period of detention from 10 ^th December, 2008 to 22 ^nd December, 2008 was otherwise in accordance with law was immaterial to the outcome of the inquiry before him.

BACKGROUND

8 E. H. is a single woman who was born on 25 ^th May, 1940. Historically, she has resided alone in a dwellinghouse in south County Dublin. Her only close relative appears to be a brother who lives elsewhere in Dublin.

9 Ms. H. was first seen by the psychiatric service in St. Vincent's Hospital on 16 ^th May, 2008 when she was being treated there in relation to a fracture of her leg. At that time the medical team attempting to treat her injury noted that she appeared to be paranoid and was refusing treatment. On 23 ^rd May, 2008, Ms. H. was assessed by Dr. Aideen Freyne, consultant psychiatrist at St. Vincent's Hospital, who concluded that Ms. H. was suffering from a mental disorder. She prescribed antipsychotic medication to treat a psychotic condition. The extent of her illness is exemplified by Dr. Freyne by reference to the applicant's belief at that time that she had inherited a substantial cash fortune of millions of euro through the female line of her family and that she needed to spend that money in order to save Dun Laoghaire Harbour.

10 Ms. H. was admitted to Elm Mount Psychiatric Unit in St. Vincent's Hospital on 3 ^rd June, 2008 as an involuntary patient. At that time she was not accepting medical treatment on the surgical ward in the general hospital complex as she did not believe she was ill. She was also refusing to eat or drink at this time. It appears that Ms. H. responded well to the course of antipsychotic medication to the point where it waspossible to discharge her from Elm Mount Unit on 30 ^th June, 2008 with a defined discharge plan in place to meet her continuing needs, including an occupational therapy assessment and family support from her brother who had been continuously involved in her care and welfare arrangements.

11 However, following her discharge, Ms. H. refused to co-operate with the discharge care plan and rejected the package of health and personal social services that had been put in place for her, including a home help service and assistance from her community psychiatric nurse. Crucially, the applicant stopped taking her essential medication.

12 In mid-July, 2008 Ms. H's personal circumstances at home had become critical. When health personnel called to her home on 17 ^th July, they found the applicant to be seriously ill and almost unconscious. She was dehydrated and suffering from a kidney infection. She was removed immediately to St. Michael's Hospital where her clinical needs were treated and where she was further assessed both by a locum psychiatrist in St. Michael's and by a liaison psychiatrist, subsequent to which she was transferred back to the Elm Mount Unit on 7 ^th August, 2008. This admission was also involuntary and the admission order was affirmed by a Mental Health Tribunal on 25 ^th August, 2008. A renewal order was made on 10 ^th September, 2008.

13 It is important to stress just how ill this unfortunate woman was. When she left hospital on 30 ^th June, 2008 she weighed 51.9 kg., which is slightly below average, but on 11 ^th August, 2008 she weighed only 41.2 kg., which was seriously underweight and an indicator of significant self-neglect. Following her re-admission to Elm Mount Unit she was noted to be depressed, with severe mood swings suggesting a bi-polar disorder. She was treated with antipsychotic and antidepressant medication with a specialised psychiatric nursing care regime to encourage her to eat and drink. In October, 2008 she was treated with lithium, a mood stabiliser, which was intended to make Ms. H's mental condition sufficiently stable to facilitate her discharge into long term care. However, as noted by Dr. Freyne in her affidavit, there was evidence on the occasion of the re-admission of Ms. H. that she was developing dementia. A CT Scan showed ischaemic changes suggestive of a possible lack of oxygen to the brain. Furthermore, her performance in clinical cognitive testing was also found to be fluctuating. She further demonstrated symptoms of passivity and lack of motivation at this time. She required the assistance of nursing staff to carry out the basic requirements of personal hygiene. She had stopped paying her rent in January, 2008, suggesting that she was unable to manage her affairs.

14 On 10 ^th December, 2008 the renewal order under which the applicant was being detained in St. Vincent's Hospital was revoked bythe Mental Health Tribunal. Apparently a date had been left out...