Health Service Executive v H.H.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conor Dignam
• Judgment Date: 03 October 2024
• Neutral Citation: [2024] IEHC 564
• Docket Number: Record No. 2023 / 336MCA

In the matter of Article 40.3 and 40.4 of the Constitution

and

In the matter of the inherent jurisdiction of The High Court

Between:

Health Service Executive

Applicant

and

H.H.

Respondent

[2024] IEHC 564

Record No. 2023 / 336MCA

THE HIGH COURT

Mental Health Act 2001 - nasogeastric feeding - what constitutes treatment?

Facts: The core issues in the case were whether nasogeastric feedng was including under restraint constitutes "treatment" within the meaning of the Mental Health Act 2001 and/or whether it can be lawfully administered under that Act. The Court was asked to make an Order under its inherent jurisdiction permitting nasogastric feeding under restraint to be administered to the respondent if the Court decided that it was not "treatment" within the meaning of the Act or could not be lawfully administered under the Act. The HSE submitted; (i) Nasogastric feeding comes within the definition of "treatment" in sections 2 and 57 of the 2001 Act; (ii) it can be lawfully administered to the respondent on an involuntary basis including sedation and/or restraint pursuant to section 57 of the 2001 Act; (iii) any administration of nasogastric feeding pursuant to the 2001 Act must comply with the regulations of section 4 of the 2001 Act; (iv) any administration of nasogastric feeding, whether pursuant to the 2001 Act or pursuant to the inherent jurisdiction, must comply with the requirements of the Constitution and the European Convention on Human Rights. The Guardian ad Litem submitted the following points of defence; (i) it is not accepted that nasogastic feeding comes within the definition of "treatment" in section 2 and 57 of the 2001 Act; (ii) alternatively, if it does come within that definition, the Act does not comply with the Constitution (the right to autonomy, dignity, bodily integrity, protection from inhumane and degrading treatment and the right to fair procedures as protected by Article 40.3) or the ECHR (the right to privacy under Article 8); (iii) It is not accepted that nasogastic feeding can be lawful administered to the respondent on an involuntary basis (and/or under restraint) oursuant to section 57 of the 2001 Act; (iv) Alternatively, if it can be, then the Act does not comply with the Constitution or ECHR; (v) it is accepted that if nasogastric feeding can be lawfully administered tot the respondent on an involuntary basis, such feeding must comply with the requirements of section 4 of the 2001 Act. The Judge was satisfied that an independent review is not provided for. Judge is also satisfied that in the absence of that safeguard, the legal effect of section 57 properly construed is that it does not encompass nasogastric feeding under retraint. Judge was to hear parties in relation to the precise Orders which sould be made.

Judgment of Mr. Justice Conor Dignam delivered on the 3 ^rd day of October 2024

INTRODUCTION

1 . The core issues raised in this case are whether nasogastric feeding including under restraint constitutes “treatment” within the meaning of the Mental Health Act 2001 and/or whether it can be lawfully administered under that Act. The Court was asked to make an Order under its inherent jurisdiction permitting nasogastric feeding under restraint to be administered to the respondent if the Court decided that it was not “treatment” within the meaning of the Act or could not be lawfully administered under the Act but for the reasons discussed below it is not necessary to consider this except in a general sense.

2 . The matter comes before the Court as follows.

3 . The respondent is a young adult. Unfortunately, she suffers from an eating disorder and the medical view at the relevant time was that nasogastric feeding including under restraint, or the possibility of it, was an important part of her treatment plan.

4 . There was a considerable volume of material before the Court, including several affirmations of the respondent's treating consultant psychiatrist and affidavits sworn by her Guardian ad Litem who was appointed by the Court. The Court also had the benefit of reports from other experts. I have considered all of this material. Neither side asked that the Court hear oral evidence and therefore the matter was dealt with on the basis of the affidavit evidence, including these expert reports.

5 . The respondent has no wish to be the subject of legal proceedings and is entitled to the greatest degree of privacy possible consistent with the constitutional requirement that justice be administered in public. I have, therefore, sought to limit the discussion of her diagnosis and course of treatment as much as possible but it is necessary to refer to them to some extent as they are part of the factual context in which the legal questions arise. I have anonymised the respondent and will refer to her as “H.H.” or “the respondent”. I have also anonymised the respondent's placement and treating psychiatrist as to refer to them by name would risk the identification of the respondent. I refer to the treating psychiatrist as “Dr. M.A.” and to the placement as “the unit”, “the hospital” or “the approved centre”.

6 . In September 2023 the respondent was admitted as an emergency to a specialist eating disorder unit. She was diagnosed with an acute eating disorder. She was treated medically and referred for urgent outpatient management. Over the course of the following month, notwithstanding weekly attendance in outpatients, her condition continued to deteriorate and, following a further drop in her weight, she was admitted (by agreement) to a specialised eating disorder bed in the hospital. At that point she was in the high-risk category for a life threatening event according to the “ Medical Emergencies in Eating Disorder Guidance” (“MEED Guidance”) (to which I refer further below) and at risk of what is called “refeeding syndrome”, which can lead to seizures and death and requires close monitoring during early refeeding.

7 . Shortly after her voluntary admission, the respondent expressed an intention to discharge herself. Her clinicians were of the view that she was unable to understand that she remained at high risk of a significant adverse event and that she lacked capacity. In those circumstances, the HSE commenced these proceedings by way of an Originating Notice of Motion seeking various reliefs under the Court's inherent jurisdiction, including Orders providing for the detention of the respondent in the approved centre/hospital for the purpose of providing care and therapeutic services and for permission to the staff to provide treatment including nasogastric feeding under sedation and/or restraint if necessary.

8 . The HSE moved what was formally an ex parte application on the 12 ^th October 2023, though the respondent was in attendance remotely. I appointed Mr. Niall McGrath, solicitor, as Guardian ad Litem and made the motion returnable for the following day, the 13 ^th October 2023. On the return date, the substantive part of that application was adjourned to the 17 ^th October 2023 in circumstances where the HSE had decided that if the respondent attempted to leave the unit the procedures under the Mental Health Act 2001 would be utilised and therefore the Orders detaining her were not required at that point in time. The respondent was again in attendance remotely.

9 . The respondent was in fact detained under section 23 of the Mental Health Act 2001 (“the 2001 Act”) on the 12 ^th October 2023 and was admitted as an involuntary patient on the 13 ^th October 2023 pursuant to section 24 of that Act. Sections 23 and 24 apply to persons who are voluntary patients in an approved centre and indicate a wish to leave the centre. The provisions of sections 15 to 22 of the 2001 Act apply as they apply to a person detained under an admission order pursuant to section 14. The detention was on the basis that the respondent was suffering from a mental disorder within the meaning of section 3(1)(a) and (b) of the 2001 Act.

10 . The application to the Court was listed and adjourned from time to time over the course of October, November and December.

11 . A renewal order under the 2001 Act was made on the 3 ^rd November 2023. This order was revoked by a Mental Health Tribunal on the 20 ^th November 2023 for reasons which are not directly relevant to the current issues. The respondent remained in the unit as a voluntary patient (though, it seems only with significant support from the ward staff) but there was a sudden and, according to the treating psychiatrist, massive resurgence in her eating disorder symptoms leading to a significant loss of weight over a short space of time. The respondent suggested that she could not recover on a voluntary basis and she was again detained as an involuntary patient on foot of an admission order of the 29 ^th November 2023.

12 . This admission order was made on the basis that the respondent suffered from a mental disorder within the meaning of section 3(1)(b)(i) of the 2001 Act. The admission order was reviewed by the Mental Health Tribunal on the 18 ^th December 2023 and the Tribunal affirmed the order on the basis that the respondent suffered from a mental disorder on the basis of section 3(1)(b). The fact that she was admitted on the basis of section 3(1)(b) is of some significance to the HSE's arguments discussed below.

13 . Unfortunately, notwithstanding this admission order of the 29 ^th November 2023, the respondent was unable to engage with her care plan, and on the 5 ^th December 2023, on the application of the HSE, I granted interim orders under the Court's inherent jurisdiction permitting the medical and nursing staff at the hospital/approved centre to carry out such medical and/or psychiatric assessment and/or treatment including under reasonable sedation, force and/or restraint, as they considered in the exercise of their clinical judgment to be in the best health and welfare...