J. H. v Clinical Director of Cavan General Hospital

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Clarke
Judgment Date06 February 2007
Neutral Citation[2007] IEHC 7
Date06 February 2007
Docket Number[2006 No. 1719 SS

[2007] IEHC 7

THE HIGH COURT

NO 1719 SS/2006
J.H. v Clinical Director of Cavan General Hospital
IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION
BETWEEN/
J. H.
APPLICANT

AND

VINCENT RUSSEL, CLINICAL DIRECTOR OF CAVAN GENERAL HOSPITAL
RESPONDENT

AND

HEALTH SERVICE EXECUTIVE
NOTICE PARTIES

AND

MENTAL HEALTH COMMISSION
Abstract:

Criminal law - Habeas Corpus - Mental Health law - Involuntary detention - Statutory interpretation-Suitable treatment - Validity of detention - Mental Treatment Act 1945 - Mental Health Act 2001

The applicant was detained as a temporary involuntary patient. The issue arose as to whether the detention order complied with the existing statutory regime, the Mental Treatment Act 1945 or the transitional provisions of the Mental Health Act 2001 and whether the authorities had provided appropriate treatment for the applicant. A gap had occurred in his detention because of oversight and the latest detention order was a fresh rather than a renewal order.

Held by Clarke J. that while appropriateness of the treatment of the applicant could not cause his detention to be unlawful, the applicant's detention had been unlawful and at the expiry of the initial detention period, he had not been released or found to be of unsound mind as appropriate.

Reporter: E.F.

1

Judgment of Mr. Justice Clarke delivered 6th February, 2007.

1. Introduction
2

Almost twelve years ago Costello P. in giving judgment in R.T. v. Director of Central Mental Hospital [1995] 2 I.R. 65 said, at p. 81, the following:-

"These defects, not only mean that the section falls far short of internationally accepted standards but, in my opinion, render the section unconstitutional because they mean that the State has failed adequately to protect the right to liberty of temporary patients. The best is the enemy of the good. The 1981 reforms which would have remedied the defects were not brought into force because more thorough reforms were being considered (para. 16.13 of Green Paper). The prolonged search for excellence extending now for over fourteen years has had most serious consequences for the applicant herein."

3

2 1.2 That passage followed on from an analysis of certain provisions (and in particular s. 207) of the Mental Treatment Act, 1945 ("the 1945 Act") which had been the subject of criticism in a Department of Health Green Paper to which Costello P. referred and which described that section as "seriously defective". That those, and other, difficulties existed in relation to many aspects of the operation of the 1945 Act had been clear for some time. The Mental Health Act, 2001 ("the 2001 Act") was the means adopted to address those difficulties. It is worthy of note that it was only in the last months of 2006 that some of the most important provisions of the 2001 Act came into force. Costello P. spoke of the consequences of a fourteen year search for excellence. In the events that have happened it has turned out to be over twenty-five years from the Green Paper to which he referred before the full new statutory regime eventually enacted in the 2001 Act came into force.

4

3 1.3 I make these comments because this case has as its backdrop the significant difficulties which those engaged as professionals in the provision of mental health services to persons who might require involuntary detention, have had to operate for far too long. It should be emphasised that there was not, nor could there in my view have been, any criticism of the motivation of those who have had to deal with the applicant ("Mr. H.") in this case. However, those persons were required to operate within a wholly unsatisfactory statutory framework and many of the issues with which these proceedings are concerned stem from that unsatisfactory framework and the necessary transitional provisions which had to be put in place to arrange for an orderly transition between the former regime which existed under the 1945 Act, to that which is now in place under the 2001 Act.

5

4 1.4 Against that background I had to consider the issues which arose in this case. In light of the fact that the proceedings were concerned with a person in involuntary detention, I informed the parties that I would announce my decision in the matter as soon as I had come to a conclusion as to the proper orders which should be made. That I did on the 8 th January, 2007. However, I also indicated that I proposed setting out, in a full reasoned judgment, the basis for coming to the conclusions which I had reached. This judgment is directed to that end. It is necessary to turn, first, to the facts of the case.

2. The facts
6

2 2.1 Mr. H was, at the time of the hearing before me, detained in Cavan General Hospital ("Cavan General") on foot of a reception and detention order which, on its face, was said to have been made under s. 184 of the 1945 Act and dated 20 th March, 2006 together with an extension of that order made on the 11 th September, 2006. Mr. H. was, therefore, detained as what is described in that legislation as "a temporary involuntary patient". There was, however, a history of previous detention which is relevant to some of the issues which I have to decide. Mr. H's detention as an involuntary patient began in March, 2003 and continued uninterrupted on the basis of renewals of the original order until 8 th March, 2005. On the face of it he would then appear to have been a voluntary patient between March 2005 up and until 5 th September, 2005 when his status changed back to that of an involuntary patient on that date. Immediately thereafter Mr. H. was transferred to the Central Mental Hospital for the balance of the six month period of detention provided for in the order of the 5 th September 2005. Thereafter there seems to have been a lacuna when no order was in place providing for his involuntary detention., although he continued in detention in the Central Mental Hospital until being brought back again to Cavan General where the order of the 20 th March, 2006 was made.

7

3 2.2 A number of complaints are made arising out of the sequence of events which gave rise to the series of orders for detention made in the case of Mr. H. Those points need to be seen against the statutory regime within which the orders were made and to which I will turn in early course. However, in addition, it is contended that the nature and suitability of the conditions and treatment received by Mr. H. while in detention render his detention unlawful. Furthermore, certain issues arise in relation to the transitional provisions contained in the 2001 Act which are designed to enable an orderly transition of the detention of persons previously detained under the 1945 Act to detention under the 2001 Act.

8

4 2.3 The general grounds relied upon by Mr. H. can, therefore, be suitably divided into:-

9

(a) Statutory grounds, that is to say arguments based upon what is said to be a failure to comply with the statutory regime for the detention of involuntary patients whether under the 1945 Act or under the transitional provisions of the 2001 Act; and

10

(b) Treatment grounds; that is to say grounds which rely upon what is said to be a failure on the part of the authorities to provide appropriate treatment for Mr. H. while in voluntary detention.

11

5 2.4 By the close of the hearing before me there was, in fact, no real dispute between the parties as to the precise sequence, and nature of the orders made in relation to detention of Mr. H. The following seems to have been the history of his detention.

12

6 2.5 As a result of what would appear to have been an assault by Mr. H. on a neighbour, Mr. H. was initially detained in Cavan General on the 18 th March, 2003 having been taken by An Garda Siochána to the psychiatric ward of Cavan General where he was admitted as a patient. That admission was as a temporary patient under the provisions of s. 184 of the 1945 Act. It should also be noted that the original application for the order made on the 18 th March 2003 was not made by a relative of Mr. H. It is said that it should have been so made so as to comply with s. 184(2) and (3) of the 1945 Act. Mr. H. had a sister who lived in Australia at all material times but who has had an active interest in his welfare. It is said that the application by someone other than a relative was in breach of s. 184(3) of the 1945 Act, because of the availability of Mr. H's sister. This is an issue to which I will return in due course. In accordance with the statutory regime under which he was detained (which I will detail in due course) the initial period of detention of Mr. H. was for a period of six months. That period was extended for a further period of six months until the 16 th March, 2004 by virtue of a decision made in September, 2003. The period was further extended until the 18 th September, 2004 as a result of a decision made in March 2004 which was followed, in turn, by a third extension, or fourth period of six months, up and until March, 2005. Thus there is no dispute but that Mr. H. was, between March, 2003 and March, 2005 detained on foot of an initial and three extending orders of six months each.

13

7 2.6 For reasons connected with the statutory regime under which Mr. H. was being detained and which I will set out later in the course of this judgment no further extension under s. 184 was, at that stage, permitted.

14

8 2.7 The formal status of Mr. H. within Cavan General altered on the 8 th March, 2005 in the following circumstances. In early March, 2005 it is clear that Mr. H. was approaching the expiry of the maximum two year detention period permitted under the 1945 Act for temporary patients. In those circumstances it would appear that Mr. H. was informed that it would be necessary that he be certified to be a person of unsound mind and transferred to St. Davnet's, Co. Monaghan...

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