M.M. v Director of the Central Mental Hospital

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 01 February 2008
• Neutral Citation: [2008] IEHC 44
• Docket Number: Record Number: No. 1833 SS/2007
• Court: High Court
• Date: 01 February 2008

[2008] IEHC 44

THE HIGH COURT

Record Number: No. 1833 SS/2007

M (M) v Director of the Central Mental Hospital

BETWEEN:

M. M.

APPLICANT

AND

DIRECTOR OF THE CENTRAL MENTAL HOSPITAL

RESPONDENT

MENTAL TREATMENT ACT 1945 S184

MENTAL HEALTH ACT 2001 PART II

MENTAL HEALTH ACT 2001 S72

MENTAL HEALTH ACT 2001 S15(2)

MENTAL HEALTH ACT 2001 S16

MENTAL HEALTH ACT 2001 S17

MENTAL HEALTH ACT 2001 S21

MENTAL HEALTH ACT 2001 S15

Q (W) v DIRECTOR OF THE CENTRAL MENTAL HOSPITAL, MENTAL HEALTH TRIBUNAL & MOHAN UNREP O'NEILL 15.5.2007 2007 IEHC 154

MENTAL TREATMENT ACT 1945 S207

KENNEDY ANNOTATED MENTAL HEALTH ACTS 2007 94

MENTAL HEALTH ACT 2001 S20

MENTAL HEALTH ACT 1983 S34 (UK)

HALE MENTAL HEALTH LAW 4ED 1996

MENTAL HEALTH ACT 2001 S49(2)

B (J) v DIRECTOR OF THE CENTRAL MENTAL HOSPITAL & HEARNE UNREP MACMENAMIN 15.6.2007 2007 IEHC 201

H (J) v LAWLOR UNREP PEART 25.6.2007 2007 IEHC 225

MCDONAGH, STATE v FRAWLEY 1978 IR 131

MENTAL HEALTH ACT 2001 S21(4)

MENTAL TREATMENT ACT 1945 S208

MENTAL TREATMENT ACT 1945 S20(4)

MENTAL TREATMENT ACT 1945 S203

MENTAL HEALTH ACT 2001 S2

MENTAL HEALTH

Detention

Involuntary patient - Renewal order - Consultant psychiatrist based in institution other than that in which applicant detained - Meaning of âÇÿconsultant psychiatrist responsible for care and treatment of patient' - Whether necessary for psychiatrist in daily charge of detainee to sign renewal order - JB v Director Central Mental Hospital [2007] IEHC 201 (Unrep, MacMenamin J, 15/6/2007) considered; WQ v Mental Health Commission [2007] IEHC 154 (Unrep, O'Neill J, 15/5/2007) distinguished - Mental Treatment Act 1945 (No 19), s 184 - Mental Health Act 2001 (No 25), ss 15, 21 and 72 - Release refused (2007/1833SS - Peart J 1/2/2008) [2008] IEHC 44

M (M) v Clinical Director Central Mental Hospital

Judgement of

Mr Justice Michael Peart

1 This is an application for an order for the release of the applicant from the Central Mental Hospital on the grounds that his detention there is unlawful. The ground on which this application is based is that a consultant psychiatrist other than"the consultant psychiatrist responsible for the care and treatment of the patient" has signed the renewal order which forms the basis for his current detention. It is necessary to set out a brief history of the applicant's detention at the Central Mental Hospital.

2 The Applicant is currently 36 years of age and, sadly, suffers from a serious mental disorder within the meaning of the Mental Health Act2001. There is no dispute about this. There is no need to set out the nature of his illness in any detail. It suffices to say that his illness is such that his detention at the Central Mental Hospital is required both in his own best interests and for the protection of others.

3 Prior to his transfer to the Central Mental Hospital in 1999, the applicant had resided in Cork, and, due to his illness, had come under the care of Dr John Cooney, a consultant psychiatrist at the North Lee Mental Health Services, St Michaels Unit, Mercy Hospital, Glenville Place, Cork. The Applicant's detention at that hospital commenced on the 13^th of May 1998 pursuant to the provisions of section 184 of the Mental Treatment Act 1945 ("the 1945 Act"). Dr Cooney was the consultant psychiatrist who certified that detention.

4 On the 16^th of November 1998 Dr Cooney authorised the transfer of the applicant to the Central Mental Hospital, Dundrum, and it has been Dr Cooney who, since that date, has signed the various orders renewing the applicant's detention in the Central Mental Hospital, both under the 1945 Act and, more recently under the Mental Health Act, 2001 ("the 2001 Act"), even though he himself is not on the staff of that hospital. He has done so on the basis that both he and the relevant staff at the Central Mental Hospital, and indeed the applicant himself and his family, consider Dr Cooney to be the consultant psychiatrist who is most familiar with the applicant's condition and requirements for treatment and care, and therefore the person best positioned to make decisions in relation to whether the applicant should continue to be detained at the Central Mental Hospital, so that he can receive appropriate care and treatment.

5 Following the transfer of the applicant to the Central Mental Hospital Dr Cooney has for the last eight years remained in regular contact with relevant personnel at that hospital, has corresponded with relevant personnel there at regular and frequent intervals, and has on many occasions attended case conferences at that hospital in relation to the applicant's care and treatment. He still regards the applicant as being "his patient". Indeed, the evidence is that the consultant psychiatrist in charge of the applicant at the Central Mental Hospital at any relevant time will always consult with Dr Cooney, by telephone or otherwise, in relation to the applicant's ongoing care, treatment and management, given the latter's long-standing knowledge of the applicant's illness since 1998.

6 Following the commencement of Part 2 of the Mental Health Act,2001 on 1^st November 2006, a person such as the applicant who was detained under the provisions of the 1945 Act is "regarded" by virtue of the provisions of section 72 of the 2001 Act (the transitional provisions) as having been involuntarily admitted under that Act to the institution in which he was so detained, for the purposes of the 2001 Act. Under those provisions also, the treatment and detention of the applicant is regarded as authorised by virtue of the 2001 Act until the expiration of the period during which he was detained pursuant to section 184 of the 1945 Act, and his detention is required to be referred to a Tribunal by the Mental Health Commission before the expiration of the period of detention previously authorised. The Tribunal is obliged to review the detention as if it had been authorised by a renewal order made under section 15(2) of the 2001 Act.

7 These provisions were complied with in the present case, and in due course on the 22^nd February 2007, Dr Cooney signed a Renewal Order which in due course was affirmed by a decision of the Mental Health Tribunal dated 12^th March 2007. A further six month Renewal Order was signed by Dr Cooney on the 28^th May 2007, which in turn was affirmed by a decision of the Mental Health Tribunal dated the 15^th June 2007. The applicant's current detention at the Central Mental Hospital is on foot of a twelve month Renewal Order signed by Dr Cooney on the 27^th November 2007. That order was affirmed by a decision of the Mental Health Tribunal dated 12^th December 2007.

8 The applicant's solicitor, Peter Connolly, appointed by the Mental Health Commission to represent the interests of the Applicant, has sworn an affidavit to ground the present application for the applicant's release. He states that at the commencement of the hearing before the Tribunal on the 12^th November 2007 he informed the Tribunal that he wished to make a submission regarding the appropriateness of Dr Cooney signing the Renewal Order. He states that he submitted that this order was signed by a consultant who was not on the staff of the approved centre in which the applicant is detained, namely the Central mental Hospital, and that in his view, this constituted a fundamental defect in the lawfulness of the applicant's current detention. In making that submission he referred to relevant case law. He states also that at the review hearing before the Tribunal, Dr Dearbhla Duffy, a consultant psychiatrist on the staff of the Central Mental Hospital, gave evidence to the tribunal, and he pointed out also that the independent psychiatrist reporting to the tribunal in relation to the applicant had referred in that report to Dr Duffy being in the consultant psychiatrist responsible for the applicant, rather than Dr Cooney. He states that in her evidence to the tribunal, Dr Duffy had stated that she had had discussions with Dr Cooney regarding the applicant's treatment on an ongoing basis and that there was regular correspondence from Dr Cooney on the applicant's file, and that he had attended case conferences in relation to the applicant. In her evidence, according to this affidavit, it was accepted that Dr Cooney had not attended the most recent case conference held at the Central Mental Hospital on the 23^rd October 2007 regarding the applicant and that she considered Dr Cooney to be actively involved in the applicant's treatment even though he is not a member of the staff of the Central Mental Hospital.

9 Mr Connolly states also that Dr Duffy agreed with him that it was she who makes the principal day to day decisions regarding the applicant at that hospital and that the only clinical entry on the notes made by Dr Cooney in the recent past, since the renewal Order in question, was on the day of assessment for the purpose of the 12 month renewal Order. She also stated in her evidence, according to Mr Connolly, that she had been involved in the treatment of the applicant since June 2007, when she was appointed to take over the role of her predecessor, Dr O'Neill, and that Dr Cooney was involved in the management of when it might be appropriate for the applicant to be transferred back to his local service in Cork and that Dr Cooney's views in that regard will be influential at the appropriate time.

10 In his grounding affidavit, Mr Connolly states that it is clear in his view that a doctor at the Central Mental Hospital where the applicant has now been since 1999 is and was at all material times the consultant psychiatrist who was responsible for the care of the applicant as of the date of the renewal Order on foot of which the applicant is detained, and not Dr Cooney. He goes on to state that it is contrary to the spirit and letter of the 2001 Act for a...