Health Service Executive (HSE) v F (v)(A Person of Unsound Mind Not So Found Represented by her Next Friend)

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 05 December 2014
• Neutral Citation: [2014] IEHC 628
• Court: High Court
• Docket Number: [2014 No. 134 IA]
• Date: 05 December 2014

Health Service Executive v F (V) (a person of unsound mind not so found represented by her next friend)

BETWEEN

HEALTH SERVICE EXECUTIVE

PLAINTIFF

AND

V. F.(A PERSON OF UNSOUND MIND NOT SO FOUND REPRESENTED BY HER NEXT FRIEND)

DEFENDANT

[2014] IEHC 628

[No. 134 JA/2014]

THE HIGH COURT

Reliefs – Guardian Ad Litem – Capacity – Medical Treatment – The Mental Health Act 2001 – Human Rights – Detention – Regulated Access – Constitutional Rights – European Convention on Human Rights

Facts: By notice of motion dated 2 ^nd October 2014, the plaintiff (HSE) sought a number of reliefs in respect of the defendant and her mental care. Various other ancillary orders were sough permitting the Commissioner and members of An Garda Síochána to bring the defendant to the care facility and place her in the care and control of its manager or director and to regulate access with her family. Orders were also sought permitting the Health Service Executive, its servants or agents to visit the defendant regularly in the care facility and to file reports in court detailing the up to date capacity, care, protection and welfare circumstances (including information on the therapeutic benefit of such a placement) of the defendant until further order, together with such additional orders as may be necessary to regulate her detention.

Held by Justice McDermott in light of the available evidence and submissions presented that since the Mental Health Act 2001, did not provide for the needs of someone with Ms. F"s mental incapacities, or for her transfer and detention in an appropriate centre which does, that the inherent jurisdiction of the Court would be invoked notwithstanding the existence of an order under the 2001 Act, in order to facilitate her transfer from St. Brigid"s to a care centre which would provide for her needs in a secured environment made possible by an order of the court. In respects of the deprivation of liberty, it was determined that there was overwhelming evidence of the threat posed to Ms. F"s life and personal safety and security by her return to the community and that it was essential due to her lack of insight and capacity that she be placed in a secure unit because of her complete inability to take care of her most basic needs. According to Justice McDermott the object of her detention was, therefore, to provide that care and thereby protect her life, and bodily integrity in accordance with both European and State Constitutional rights. In reaching its decision, the court also considered the best interests of Ms. F. as the paramount consideration in the application and was satisfied that the transfer was fully in accordance with her best interests and welfare. Consequently, the Court decided to grant the declarations sought by the HSE and the relevant ancillary orders required in order to ensure Ms. F. obtained the appropriate care and attention in a secure unit. In accordance with the applicable laws and caselaw, it was further determined that a review of Ms. F"s detention and treatment would take place.

RSC O.15 r19

MENTAL HEALTH ACT 2001 S22(1)

MENTAL HEALTH ACT 2001 S15(3)

MENTAL HEALTH ACT 2001 S22

MENTAL HEALTH ACT 2001 S3

MENTAL HEALTH ACT 2001 S3(B)(II)

MENTAL HEALTH ACT 2001 S3(1)(A)

MENTAL HEALTH ACT 2001 S3(1)(B)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

MENTAL HEALTH ACT 2001 S26

MENTAL HEALTH ACT 2001 S2

MENTAL HEALTH ACT 2001 S4

MENTAL HEALTH ACT 2001 S4(3)

MENTAL HEALTH ACT 2001 S8

MENTAL HEALTH ACT 2001 S9

MENTAL HEALTH ACT 2001 S12

MENTAL HEALTH ACT 2001 S20

MENTAL HEALTH ACT 2001 S21

MENTAL HEALTH ACT 2001 S22

MENTAL HEALTH ACT 2001 S22(2)

MENTAL HEALTH ACT 2001 PART V

G (D) (A MINOR) v EASTERN HEALTH BOARD & ORS 1997 3 IR 5111998 1 ILRM 241 1998/7/1838

CONSTITUTION ART 40.3

HEALTH SERVICE EXECUTIVE (HSE) v O'B (J) 2011 1 IR 7942011 2 ILRM 433 2011/25/6502 2011 IEHC 73

A WARD OF COURT (WITHHOLDING MEDICAL TREATMENT) (NO 2), IN RE 1996 2 IR 79 1995/14/3539

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.4.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

HEALTH SERVICE EXECUTIVE (SOUTHERN AREA) v S (S) (A MINOR) 2008 1 IR 5942008 1 ILRM 379 2007/28/5862 2007 IEHC 189

WINTERWERP v NETHERLANDS 1979-80 2 EHRR 387 (APPLICATION NO 6301/73)

PLESO v HUNGARY UNREP ECHR 2.10.2012 (APPLICATION NO 41242/08)

MIHAILOVS v BULGARIA UNREP ECHR 22.1.2013 (APPLICATION NO 35939/10)

1 JUDGMENT of Mr. Justice McDermott delivered the 5th day of December, 2014

2 1. By notice of motion dated 2 ^nd October, 2014, the plaintiff (the HSE) sought a number of reliefs, including:-

3 (a) A declaration that the defendant lacked capacity to consent to the provision of necessary and appropriate medical, nursing, psychiatric treatment and welfare and therapeutic services, or to make directions regarding her accommodation;

4 (b) A declaration that in the existing circumstances the defendant is currently at serious risk as a result of which she is in need of special, therapeutic and welfare services, the effective provision of which requires that she be detained in a secure place;

5 (c) An order pursuant to the inherent jurisdiction of the court authorising the HSE, its servants or agents to place the defendant in the care, maintenance and custody of a nominated care facility for the purpose of the provision of welfare and therapeutic services in the said facility pending further order of the court;

6 (d) An order directing the HSE, its servants or agents to provide the manager and/or director of the facility with all necessary and/or incidental information concerning the care, protection and welfare circumstances of the defendant;

7 (e) An order permitting the manager and/or director of the centre to detain the defendant at the facility for the purposes of providing welfare and therapeutic services to her in the facility pending further order of the court;

8 (f) An order permitting the HSE to make all arrangements necessary to enable the defendant to travel to and in due course, if necessary, return from the said centre;

9 (g) An order permitting the manager and/or director of the facility to take all necessary or incidental steps (including the provision of consent for any educational, medical, psychiatric, psychological or other treatment or assistance) to promote and/or protect the care, protection and welfare circumstances of the defendant;

10 (h) An order permitting the manager or director of the facility to take all necessary steps to ensure the safety and welfare of the defendant in accordance with their policies and procedures.

11 2. In addition, orders were sought ancillary to the above orders permitting the Commissioner and members of An Garda Síochána to bring the defendant to the care facility and place her in the care and control of its manager or director and/or its servants or agents, and, if she were to abscond from it, to immediately search for, arrest without warrant, and detain her in their custody for a reasonable period of time and return her as soon as practicable to the custody of the manager or director of the care facility. Orders were also sought permitting the officers and staff of the facility to authorise and regulate in their discretion a regime of mobilities out of the centre as may be deemed appropriate, and providing for a regime of regular access between the defendant and her family as may be appropriate in her overall welfare and interests.

12 3. Orders were also sought permitting the Health Service Executive, its servants or agents to visit the defendant regularly in the care facility and to file reports in court detailing the up to date capacity, care, protection and welfare circumstances (including information on the therapeutic benefit of such a placement) of the defendant until further order, together with such additional orders as may be necessary to regulate her detention.

13 4. Ms. Anna Cogan, Solicitor, was appointed as guardian ad litem to the defendant in these proceedings pursuant to O. 15, r. 19 of the Rules of the Superior Courts. In a cross application the guardian ad litem seeks a declaration as to the defendant's capacity and such consequential orders as may be necessary, in respect of the formal review of any finding of lack of decision-making capacity on the part of the defendant. The guardian ad litem opposes the invocation of the inherent jurisdiction of the High Court and makes the case that the transfer to the care facility from the approved hospital in which the defendant is presently detained under the Mental Health Act 2001, could be effected under s. 22(1) of the Mental Health Act 2001, and consequently, seeks a declaration that:-

"As a person detained pursuant to a renewal order made on 10 ^th October, 2014, in accordance with the provisions of the Mental Health Act 2001, s. 15(3), (the defendant) may be transferred by the clinical director of St. Brigid's Hospital, Ardee, County Louth, to (the nominated care facility), pursuant to the provisions of the Mental Health Act 2001, s. 22, with such consequential orders as to the court seems meet in relation to her transfer thereto and detention therein."

14 In addition, the guardian ad litem seeks such consequential orders as may be necessary in relation to the disclosure to her of reports concerning any assessments and investigations carried out in respect of the defendant in the course of her treatment.

Summary of Evidence

15 5. Dr. MacDara McCauley, Consultant Psychiatrist at St. Brigid's Hospital, Ardee, Ms. F's treating psychiatrist, furnished a report dated 7 ^th October, 2014. He was also in possession of a number of reports from Dr....