L (P) v Clinical Director of St Patrick's Hospital & O'Ceallaigh

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 14 December 2012
• Neutral Citation: [2012] IEHC 15
• Docket Number: [2011 No. 1122 JR]
• Court: High Court
• Date: 24 January 2012

[2012] IEHC 15

THE HIGH COURT

Record Number: No. 1122 JR/2011

L (P) v Clinical Director of St Patricks University Hospital & O Ceallaigh

Between:

PL

Applicant

And

The Clinical Director of St. Patrick's University Hospital and Dr. Séamus Ó Ceallaigh

Respondents

MENTAL HEALTH ACT 2001 S23

MENTAL HEALTH ACT 2001 S24

MENTAL HEALTH ACT 2001 S3

MENTAL HEALTH ACT 2001 S23(1)

MENTAL HEALTH ACT 2001 S2(1)

MENTAL HEALTH ACT 2001 S3(1)(B)(i)

MENTAL HEALTH ACT 2001 S3(1)(B)(ii)

MENTAL HEALTH ACT 2001 S3(1)(A)

MENTAL HEALTH ACT 2001 S28(3)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

MENTAL HEALTH ACT 2001 S73

MENTAL HEALTH ACT 2001 S3(1)(B)

MENTAL HEALTH ACT 2001 S2

MENTAL HEALTH ACT 2001 S14

MENTAL HEALTH ACT 2001 S10

MENTAL HEALTH ACT 2001 S16

MENTAL HEALTH ACT 2001 S4

MENTAL HEALTH ACT 2001 S16(G)

MENTAL HEALTH ACT 2001 S28

MENTAL HEALTH ACT 2001 S14

CONSTITUTION ART 40

MENTAL HEALTH ACT 2001 S28(1)

MENTAL HEALTH ACT 2001 S28(2)

MENTAL HEALTH ACT 2001 S62

MENTAL HEALTH ACT 2001 S63

MENTAL HEALTH LAW

Detention

Voluntary patient - Absence of statutory regime of protection applicable to voluntary patients - Declaratory relief - Revocation of renewal order in respect of patient remaining in care on voluntary basis - Alleged withdrawal of consent to remain - Alleged refusal of permission to leave special care unit - Whether patient unlawfully detained - Treatment of voluntary patients -Definition of âÇÿapproved centre'- Failure to provide legal representative with revocation order - Absence of prejudice - Alleged delay in proper consideration of applicant - Mental Health Act 2001 (No 25), ss 3, 23, 24, 62 and 63 - Relief refused (2011/1122JR - Peart J - 24/1/2012) [2012] IEHC 15

L(P) v Clinical Director of St Patrick's University Hospital

Facts The applicant had been receiving treatment at St. Patrick's University Hospital ("the hospital") following a psychotic episode at home. During his treatment at the hospital a decision had been taken to detain the applicant under the Mental Health Act, 2001. Various orders were made after that renewing the applicant's detention for a period and thereafter revoking those orders so that the applicant became a voluntary patient again. It was submitted that the regime the applicant had been submitted to was unlawful and was without any statutory or other lawful basis and a declaration was sought to this effect. It was also contended the delay in moving the applicant to an open unit constituted a breach of the applicant's right as to privacy and was in breach of the Constitution and the European Convention of Human Rights. Damages were sought pursuant to Section 73 of the Mental Health Act, 2001. It was submitted that the regime under which the applicant was detained could not be reconciled with voluntariness, and that if the hospital had accepted that the applicant had the capacity to give his consent to be detained it must equally accept his capacity to withdraw that consent.

Held by Peart J in refusing the reliefs sought: It was not accepted that the manner in which the applicant was dealt with resulted in an unlawful detention. Clinicians must be permitted a wide margin of appreciation in how they might consider that the best interests of the patient were served. As it was a specialist facility this could be more restrictive of a patient's freedom of movement than one would find in a general hospital. Actions carried out by the hospital were done in the applicant's best interests and so that he could be persuaded again to remain as a voluntary patient under the recommended care plan. It was relevant that nobody was attempting to argue the applicant did not need treatment or that the staff were acting other than in a completely bona fide way and in his best interests. The court was satisfied that the applicant had expressed on the relevant occasions a willingness to remain and to be treated in the hospital, even though he had previously expressed a wish to leave, and that it was appropriate for the personnel involved to handle the situations in the way they did.

Reporter: R.F.

1 On the 26 ^th August 2011 the applicant became a voluntary patient at St. Patrick's University Hospital ("the hospital") following a psychotic episode at home, arrangements having been made by his General Practitioner. He was accompanied to the hospital by his father and a family friend. He was admitted to the Special Care Unit there, where he was seen to display aggressive, violent and at times inappropriate behaviour, but nevertheless accepted medication, and appears to have settled. On the following day he was examined by a consultant psychiatrist, and a care plan was devised which involved close observation and a continuation of certain medication, and he consented also to histories being taken from family members and his General Practitioner.

2 He remained a voluntary patient and continued to be treated as such until the 13 ^th September 2011, when he expressed a desire to leave the hospital whereupon the provisions of sections 23 and 24 of the Mental Health Act, 2001 ("the Act") were invoked whereby, following an examination by Dr Ó Ceallaigh and the forming by him of the opinion that the applicant was suffering from a mental disorder within the meaning of section 3 of the Act, the applicant was detained pursuant to section 23 (1) of the Act. As required, by section 24 of the Act he was on the following day examined by a second consultant psychiatrist who formed a view similar to that of Dr Ó Ceallaigh that the applicant should be detained, and an Admission Order was signed by Dr Ó Ceallaigh for that purpose on the 14 ^th September 2011. That Admission Order was the subject of a review by a Mental Health Tribunal on the 27 ^th September 2011 and was affirmed.

3 Áine Hynes, solicitor, represented the applicant before the Tribunal, and according to her affidavit she raised her concerns as to whether in reality the applicant was a voluntary patient from the 26 ^th August 2011 as she had seen a reference in the applicant's admission notes to the effect that the applicant was perplexed and confused and that he had indicated that he wanted to leave. However, the admission order was affirmed. It is relevant at this point to say that section 2(1) of the Act defines a voluntary patient as "a person receiving care and treatment in an approved centre who is not subject to an admission order or a renewal order", and clearly the applicant was within this definition from the 26 ^th August 2011, even if from time to time he expressed a wish to leave.

4 On the 27 ^th September 2011, Dr Ó Ceallaigh, being still of the opinion on that date that the applicant required to be detained, signed a Renewal Order authorising the applicant's detention until the 26 ^th December 2011. On the 11 ^th October 2011, that Renewal Order was affirmed by a Mental Health Tribunal. Ms. Hynes has exhibited a copy of the Tribunal's record of the proceeding before the Tribunal on the 11 ^th October 2011 which contains the reasons for the Tribunal's decision to affirm the Renewal Order. This document records that Dr Ó Ceallaigh stated that while the applicant was making progress, accepting his medication, was working with the care team and focussing on the future, he nevertheless indicated that he would prefer not to be in the hospital, and that on the previous day had expressed a wish to leave. Dr Ó Ceallaigh is noted as having given his opinion that the applicant's judgment and capacity "remain significantly impaired", that the applicant required a further period in hospital for treatment, and that he could not be treated in a less secure environment. The record notes also that a forensic opinion had been sought in addition to an MRI scan and an EEG, both of which would be conducted when the applicant was considered to be clinically stable enough to tolerate any associated stress. Dr Ó Ceallaigh is noted also as having stated that the applicant fell within the criteria of section 3(l)(b)(i) and (ii) of the Act and that it was not possible to manage his care outside the Special Care Unit. He is noted also as having outlined his concerns about the risk which the applicant may pose to other persons, but that he nevertheless felt that as of that time those risks were not such as to come within section 3(l)(a) of the Act, and that the risks were not immediate and severe on that date.

5 This record notes also that the applicant indicated at the Tribunal that he did not want to be in hospital, but then indicated that he would stay on a voluntary basis for a couple of days, and then further indicated that he would not take his medication if he left the hospital. He is noted as denying that he had a mental illness and denied any difficulties with his family. Having heard legal submissions the Tribunal affirmed the Renewal Order.

6 An unusual feature of this case is that having expressed his opinions to the Tribunal as noted on the 11 ^th October 2011, Dr Ó Ceallaigh on the following day, the 12 ^th October 2011, revoked the Renewal Order having examined the applicant on that date at 16.55hrs, expressing the opinion on Form 14 pursuant to Section 28 of the Act that the applicant was no longer suffering from a "mental disorder" as defined in the Act and was being discharged pursuant to that section which provides:

2 2 "28.-(1) Where the consultant psychiatrist responsible for the care and treatment of a patient becomes of opinion that the patient is no longer suffering from a mental disorder, he or she shall by order in a form specified by the Commission revoke the relevant admission order or renewal order, as the case may be, and discharge the patient."

The applicant was not discharged in the sense of leaving the hospital, or being invited or allowed to leave. He remained as...