J.F. -v- The Mental Health Tribunal,  IEHC 100 (2018)
|Docket Number:||2018 27 JR|
|Party Name:||J.F., The Mental Health Tribunal|
THE HIGH COURT
JUDICIAL REVIEW [2018 No. 27 J.R.]
MENTAL HEALTH TRIBUNAL RESPONDENT
JUDGMENT of Mr. Justice Coffey delivered on the 5th day of March, 2018
This is an application for judicial review in which the applicant seeks to challenge a decision of the respondent made on the 2nd January, 2018 pursuant to s. 18 of Mental Health Act 2001 (“the Act”) which affirmed an admission order made on 13th December, 2017 pursuant to s. 14(1) of the Act.
The applicant challenges the decision on three grounds:-
(1) It is contended that the respondent erred in law in failing to determine that a decision had been made on 10th December, 2017 to refuse an admission order so that the underlying application and recommendation were spent as of the date of the purported making of the admission order on 13th December, 2017;
(2) It is further contended that the respondent erred in law in failing to determine that the examination of the applicant carried out by a consultant psychiatrist on the 13th December, 2017 was not carried out “as soon as may be” as required by s. 14(1) of the Act;
(3) It is further contended that having found that ss. 9, 10, 11, 12, 13, 14, 15 and 16 of the Act had not been compiled with and having further found that the failure did not affect the substance of the admission order or cause an injustice, the respondent failed in its duty to give reasons for its decision.
The applicant seeks the following reliefs:-
(1) An order of certiorari quashing the decision of the respondent in respect of the applicant dated 2nd January, 2018;
(2) A declaration that the respondent erred in law in failing to hold that the application contained in a form dated 8th December, 2017 and used in the process to involuntarily detain the applicant on 13th December, 2017 was spent and/or had already be determined prior to 13th December, 2017 That is to say, a decision not to make an admission order had already been made on or about 10th or 11th December by a consultant psychiatrist;
(3) A declaration that the respondent, having found that there existed a failure to comply with the provisions of ss. 9, 10, 12, 14, 15 and 16 where applicable, did not give adequate reasons why s. 18(1)(a)(ii) applied to the various failures to a comply with the mandatory provisions of the Act;
(4) A declaration that where the respondent was satisfied that there had been failures to comply with the provisions of the Act, relating to the process of the applicant’s involuntary admission, in order for s. 18(1)(a)(ii) of the Act to be utilised to affirm the admission order, notwithstanding such errors or failures, the respondent is required as a matter of law to identify the precise failures, to ascertain their effects and estate why the failures did not affect the substance of the admission order and why they did not cause an injustice.
It is common case that on the day of its making, the impugned decision of the 2nd January, 2018 was superseded by a renewal order made pursuant to s. 15 of the Act. It thereby ceased to have any legal effect for which reason a preliminary issue arose as to whether the proceedings were moot.
On 24th January, 2018 this Court gave an ex tempore ruling in which, for the reasons stated therein, it held that the proceedings were moot but nonetheless decided in the exercise of its discretion to allow the hearing to proceed.
In so deciding, this Court accepted that the applicant had raised a novel and important point of law in relation to the powers and obligations provided for by s. 14 of the Act and further accepted that the opportunity afforded to the applicant to raise the issue before the making of the renewal order was so insufficient as to be almost nonexistent. In so ruling, however, this Court expressly retained its discretion to review its ruling in the light of how the case proceeded.
On 8th December, 2017 the applicant’s mother completed an application to a registered medical practitioner for a recommendation for the involuntary admission of her son to “an approved centre”, as prescribed under the Act.
At s.7 of the application, the applicant’s mother stated her reason for making the application as follows:-
“[JF] is hallucinating, delusional and agitated. He has a history of psychosis and is on ozanzapine but may not be compliant.”
Section 9 of the relevant form states that the person completing it should not make an application unless he or she has observed the person who is the subject of the application “not more than 48 hours before the date of the making of the application.” The applicant’s mother completed s. 9 of the form to indicate that she last observed her son at 17:20 on the 8th December, 2017. It is common case that the stated date of observation was within the requisite period of 48 hours and it is further accepted that the numeral “2” in the time recorded in the application was overwritten.
On the same day, the applicant’s general practitioner, Dr. Patrick O’Connor, completed a recommendation in the prescribed form for the involuntary admission of the applicant to an approved centre. Dr. O’Connor ticked the relevant box at s.7 of the recommendation to indicate that in his opinion “the reception, detention and treatment of (the applicant) in an approved centre would be likely to benefit or alleviate (his) condition … to a material extent”.
Section 8 of the form requires the doctor to give a clinical description of the applicant’s mental condition and to state the grounds for his opinion which Dr. O’Connor set out as follows:-
“Patient has been treated for psychotic episode currently on olanzapine 5 mg a day behaviour now erratic + patient has been having…”
It is not in dispute that in completing s. 8 of the recommendation, Dr. O’Connor failed to state his opinion that involuntary detention and treatment of the applicant in an approved centre would be likely to benefit or alleviate the applicant’s condition. However, he had clearly indicated his opinion to that effect by ticking the relevant box when completing s. 7 of the form.
On the evening of Sunday, 10th December, 2017 the applicant’s mother brought the application and the recommendation to the approved centre.
At this point, there is a divergence in the evidence relied upon by the applicant and the respondent. The applicant contends that the on call consultant psychiatrist at the approved centre “decided” to treat the applicant in the community and relies on the fact that the following day a community mental health nurse was sent out to visit the applicant at his home. It is alleged that the intention behind this decision was to avoid the involuntary detention of the applicant in a situation where the applicant’s mother wished the matter to be dealt with as calmly as possible. The respondent contends that no such decision is recorded in the relevant clinical notes for the 10th/11th December, 2017 and characterises the decision on the 10th December, 2017 to send the nurse out to visit the applicant at his home as no more than a decision “not to act precipitously” in circumstances where the applicant was not an immediate risk to himself...
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