J.H. v Brian Lawlor, Clinical Director of the Jonathan Swift clinic, St. James's Hospital

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Michael Peart
• Judgment Date: 25 June 2007
• Neutral Citation: [2007] IEHC 225
• Docket Number: [2007 No. 811
• Date: 25 June 2007

[2007] IEHC 225

THE HIGH COURT

Record Number: No. 811 SS/2007

H (J) v CLINICAL DIRECTOR OF JONATHAN SWIFT CLINIC, ST. JAMES'S HOSPITAL, DUBLIN (LAWLOR)

IN THE MATTER OF AN APPLICATION FOR AN ENQUIRY PURSUANT

TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN:

JH

APPLICANT

AND

PROFESSOR BRIAN LAWLOR, CLINICAL DIRECTOR OF THE JONATHAN SWIFT CLINIC, ST. JAMES'S HOSPITAL, DUBLIN

RESPONDENTS

CONSTITUTION ART 40.4.2

MENTAL HEALTH ACT 2001 S23(1)

MENTAL HEALTH ACT 2001 S23

MENTAL HEALTH ACT 2001 S24

MENTAL HEALTH ACT 2001 S24(1)

MENTAL HEALTH ACT 2001 S24(2)(a)

(O'D) T v KENNEDY UNREP CHARLETON 25.4.2007 2007 IEHC 129

Q v GOVERNOR OF ST PATRICK'S HOSPITAL & ORS UNREP O'HIGGINS 21.12.2006 EX TEMPORE (NO TRANSCRIPT AVAILABLE)

GOODEN v ST OTTERANS HOSPITAL UNREP KELLY 14.12.2000 2000/10/3651

MENTAL TREATMENT ACT 1945 S192

MENTAL HEALTH ACT 2001 S18

MENTAL HEALTH ACT 2001 S18(1)(a)(ii)

MENTAL HEALTH ACT 2001 S24(3)

MENTAL HEALTH ACT 2001 S15

MENTAL HEALTH ACT 2001 S16

MENTAL HEALTH ACT 2001 S17

MENTAL HEALTH ACT 2001 S19

MENTAL HEALTH ACT 2001 S20

MENTAL HEALTH ACT 2001 S21

MENTAL HEALTH ACT 2001 S22

MENTAL HEALTH ACT 2001 S18(1)

MENTAL HEALTH ACT 2001 S4(1)

MENTAL HEALTH ACT 2001 S3

MENTAL HEALTH ACT 2001 S24(6)

MENTAL HEALTH ACT 2001 S24(5)

MCDONAGH, STATE v FRAWLEY 1978 IR 131

MENTAL HEALTH ACT 2001 S24(1)(a)(ii)

INTERPRETATION ACT 2005 S5(1)

MENTAL HEALTH

Detention

Involuntary - Purposive approach to interpret non-penal statute - Whether detention lawful - Whether slavish adherence to time limits required - 24 hour period exceeded - Whether default in some fundamental required in order to impugn lawfulness of the detention - Responsible consultant psychiatrist - Locum - Whether responsible - T O'D v Kennedy [2007] IEHC 129 (Unrep, Charleton J, 25/4/2007) considered; The State (McDonagh) v Frawley [1978] IR 131 followed - Mental Health Act 2001 (No 25), ss 23 & 24 - Interpretation Act 2005 (No 23), s 5 - Constitution of Ireland Article 40.4.2 - Detention found to be lawful (2007/811SS - Peart J - 25/6/2007) [2007] IEHC 225

H(J) v Lawlor

1 Mr Justice Michael Peart delivered on the 25th day of June 2007:

2 The applicant was brought to the Emergency Department of St. James's Hospital by members of An Garda Siochana after they had broken into his flat following complaints from some of neighbours in the early hours of the 27 ^th April 2007. He had been first brought to the Garda Station where he was seen by a doctor, who in turn made a referral to St. James's Hospital.

3 From the hospital notes it appears that he arrived at that hospital at about 3.45am, and was seen by staff on duty there at about 5.45am. These notes indicate, inter alia, that he exhibited suicidal ideation at that time, and that he may have a history of bipolar disorder.

4 It appears from a note timed at 7pm on the 27 ^th April 2007 that the applicant had absconded from the Accident and Emergency Department that morning and was found in the garden area of the Jonathan Swift Clinic, where he was demanding to be given a bed and to be admitted voluntarily. He agreed was admitted as a voluntary patient at about 8am on that date.

5 The Patient Assessment form indicates that the Consultant under whose care he was to be is "Dr. Shanley". That has some relevance which I shall come to in due course. The Patient Assessment Form is signed by a staff nurse.

6 Three days later on the 30 ^th April 2007 he indicated a wish to leave the hospital. The notes made at 9.30am indicate that the applicant had, earlier that morning (the precise time not being specified in the notes) burst into the nursing office expressing paranoid ideas, and was aggressive to staff, was unwilling to wait to be reviewed by the medical team, and indicated a wish to discharge himself. These notes then state that he was "informed that he was being placed on 24 hour holding power - relevant form completed - team informed".

7 According to the information contained in the Form 13 completed at 12.02pm on that date by Dr Brian Fitzmaurice, the provisions of s. 23(1) of the Mental Health Act, 2001 ("the Act") were invoked at 9.20am.

8 Section 23 (1) provides as follows:

"23. - (1) Where a person (other than a child) who is being treated in an approved centre as a voluntary patient indicates at any time that he or she wishes to leave the approved centre, then, if a consultant psychiatrist, registered medical practitioner or registered nurse on the staff of the approved centre is of opinion that the person is suffering .from a mental disorder, he or she may detain the person for a period not exceeding 24 hours or such further period as may be prescribed, beginning at the time aforesaid." (my emphasis)

9 I have placed emphasis on the words "not exceeding 24 hours" since that period is at the heart of one of the applicant's submissions whereby he contends that his current detention is unlawful.

10 At any rate an opinion was formed by a "registered nurse on the staff of the approved centre" (as required by s. 23 (1) of the Act) on the 30 ^th April 2007 that the applicant was suffering from a mental disorder, and he was detained under the provisions of s. 23.

11 That being so, the provisions of s. 24 became applicable. That section provides:

12 2 "24.- (1) Where a person (other than a child) is detained pursuant to section 23, the consultant psychiatrist responsible for the care and treatment of the person prior to his or her detention shall either discharge the person or arrange for him or her to be examined by another consultant psychiatrist who is not a spouse or relative of the person.

13 (2) If, following such an examination the second-named consultant psychiatrist-

14 (a) is satisfied that such person is suffering from a mental disorder, he or she shall issue a certificate in writing in a form specified by the Commission stating that he or she is of opinion that because of such mental disorder the person should be detained in the approved centre, or

15 (b) is not so satisfied, he or she shall issue a certificate in writing in a form specified by the Commission stating that he or she is of opinion that the person should not be detained and the person shall thereupon be discharged.

16 (3) Where a certificate is issued under subsection (2)(a), the consultant psychiatrist responsible for the care and treatment of the person immediately before his or her detention under section 23 shall make an admission order in a form specified by the Commission for reception, detention and treatment of the person in the approved centre.

17 (4) The provisions of sections 15 to 22 shall apply to a person detained under this section as they apply to a person detained under section 14 with any necessary modifications.

18 (5) For the purpose of carrying out an examination under subsection (2), the consultant psychiatrist concerned shall be entitled to take charge of the person concerned for the period of 24 hours referred to in section 23.

19 (6) References in this section to the consultant psychiatrist responsible for the care and treatment of the person include references to a consultant psychiatrist acting on behalf of the first-mentioned consultant psychiatrist." (my emphasis)

20 As I have just stated, the detention order made under s. 23 of the Act was initiated at 9.20am on the 30 ^th April 2007, according to the information appearing on the Form 13 completed and signed by Dr Brian Fitzmaurice at 12.02pm.

21 Dr Fitzmaurice as required by s. 24 (1) of the Act arranged for the applicant to be examined by another consultant psychiatrist, namely Dr Siobhán Ní Bhriain. She examined him and at 20.04 on 30 ^th April 2007 duly signed a certificate for the purpose of s. 24(2)(a) of the Act to the effect that she was satisfied that he was suffering from a mental disorder, and that as a result of same he should be detained, and she sets out her reasons for arriving at that opinion.

22 On the following morning the 1 ^st May 2007, being in receipt of the necessary certificate from the second consultant psychiatrist, Dr Fitzmaurice signed the admission order at 9.40am.

23 That admission order was affirmed by the Tribunal on the 1 ^st June 2007, and was in fact then renewed for a further three months on the 1 ^st June 2007. The latter renewal order is the order under which, according to the Certificate handed into Court, the applicant is currently detained.

24 Arising from the above sequence of events, the applicant makes two complaints as to why his detention should be deemed to be not in accordance with law.

1. Admission order made 20 minutes outside 24 hours from s. 23 detention order:

25 Firstly, as will have been seen, while the detention order under s. 23 of the Act was initiated at 9.20am on 30 ^th April 2007 according to the Form 13, and which entitled the respondent hospital to detain for a period "not exceeding 24 hours", the subsequent admission order, following the obtaining of the certificate, was not made by Dr Fitzmaurice until 9.40am on the 1 ^st May 2007 - i.e. 24 hours and 20 minutes later.

26 Bronagh O'Hanlon SC for the applicant has referred the Court to a passage from a recent judgment of Mr Justice Charleton in TO'D v. Kennedy, unreported, 25 ^th April 2007 in which that learned judge considered whether there was any 'give' as it were in the period of 24 hours referred to in s. 23 as the duration of a detention order made under that section. In that case the period had been exceeded by some six days. But in that context, the learned judge stated at para. 22 of his judgment:

"I have no doubt that the involuntary detention of a patient who is previously a voluntary patient, under s. 23(1) of the Act is an emergency measure that is limited to a maximum period of 24 hours. Apart from the...