L.K. v Naas General Hospital

• Jurisdiction: Ireland
• Judge: MR. JUSTICE CLARKE
• Judgment Date: 06 July 2006
• Neutral Citation: [2006] IEHC 196
• Court: High Court
• Docket Number: 615$$/2006,[2006 No. 615 SS]
• Date: 06 July 2006

[2006] IEHC 196

THE HIGH COURT

DUBLIN

615$$/2006

KELLY v CLINICAL DIRECTOR OF LAKEVIEW UNIT NAAS GENERAL HOSPITAL

IN THE MATTER OF AN APPLICATION

PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

LOUISE KELLY

Applicant

and

THE CLINICAL DIRECTOR OF LAKEVIEW UNIT NAAS GENERAL HOSPITAL - SOUTH WESTERN AREA

Respondents

CONSTITUTION ART 40.4.2

MENTAL TREATMENT ACT 1945

CROKE v SMITH (NO 2) 1998 1 IR 101

1 MR. JUSTICE CLARKE DELIVERED ON WEDNESDAY 17TH MAY 2006

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.

APPEARANCES

For the Applicant:

MR. J. ROGERS S.C.

MR. KEIRDA NAIDOO

Instructed by:

MICHAEL FINUCANE SOLICITORS

For the Respondent:

MR. F. GRIFFIN

Instructed by:

BCN HANBY WALLACE

SOLICITORS

3 COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography services

THE JUDGMENT COMMENCED, AS FOLLOWS, ON WEDNESDAY 17TH MAY 2006

4 MR. JUSTICE CLARKE: This matter has come before the court as a result of an order which I made on Monday of this week directing an inquiry under article 40.4.2 of the Constitution into the lawfulness of the detention of the applicant, Louise Kelly, who is currently detained under the provisions of the Mental Treatment Act in the Lakeview Unit of Naas General Hospital.

5 The starting point must be a consideration of the role of the court in an application such as this. The interaction between article 40 of the Constitution and persons who may be detained under the provisions of the Mental Treatment Act 1945was considered by the Supreme Court some ten years ago in the case of Croke and Smith. That action involved a large number of issues including questions of the consistency of certain aspects of the Mental Treatment Act with the Constitution. In finding that the Mental Treatment Act was consistent with the Constitution, the court noted that there were a number of safeguards available to persons who may be detained; amongst those safeguards was the entitlement of such a person to invoke the provisions of article 40.4.2 of the constitution. In that regard, delivering the judgment of the court, Hamilton CJ said the following at page 124:

"By virtue of the provisions of article 40.4.2 of the constitution complaint may be made to the High Court by, or on behalf of, a patient detained pursuant to the provisions of the Mental Treatment Act 1945(as amended) alleging that he has been unlawfully detained and once such a complaint is made the High Court is obliged to conduct an inquiry into the lawfulness of the applicant's detention."

"The onus is on the person in whose custody the applicant is to justify the detention and the High Court must be satisfied that such detention is in accordance with law before permitting the continued detention of the applicant."

"upon the hearing of the application the High Court must be satisfied that:"

(1) the person detained is a person of unsound mind and in need of care and treatment;.

(2) that the procedures outlined in the Act have been complied with;.

(3) the person detained has not recovered; and.

(4) the person detained is not being unnecessarily deprived of his liberty.

6 unless it is satisfied with regard to each of the foregoing, the High Court must order the discharge or release of the person detained."

7 It should be noted that the court also went on to consider a number of other avenues that might be open to a person who wished to contest the validity of their detention. However, it seems to me to be clear that one of the avenues that is open to a detained person is to seek to invoke the jurisdiction of this court under article 40.4.2, and that is what Miss Kelly has sought to do in this case. Therefore, it would seem to be the case that where there is not, as there is not here, any procedural dispute as to compliance with the statutory requirements of the Act, the law may be briefly stated to be the following. where a person seeks an inquiry under article 40.4.2 and alleges that they ought not be detained the onus is on the custodian of the person, and that onus is to show that the detainee remains as of the date of the inquiry, in need of care by virtue of being of unsound mind such that deprivation of liberty is necessitated. That is, in effect, a composite of the three non-procedural tests set out at items 1, 3 and 4.

8 It also seems to me that a detainee must, as a consequence of that entitlement, be entitled to a reasonable opportunity to deal, at the hearing of the inquiry, with each of the components of the test. The question that has arisen in a rather stark fashion in this case is as to how in practice a hearing of the type contemplated in the Croke decision should be approached.

9 There are a number of potential circularities with which, in fairness to all sides, including the Court, are faced where issues such as those which arise in this case emerge in the course of a potential inquiry under article 40.4.2 in the case of a person detained under the Mental Treatment Act. The first is a circularity noted by Mr. Rogers when moving the application seeking the inquiry on Monday last, when he pointed to the difficulty that may be encountered by a person in the position of Miss Kelly who wishes to contest the validity of her continued detention and...