M.M. v Minister for Justice, Equality & Law Reform and Ors

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 14 December 2012
• Neutral Citation: [2012] IEHC 547
• Court: High Court
• Docket Number: Record Number: No. 1122 JR/2011
• Date: 14 December 2012

[2012] IEHC 547

THE HIGH COURT

Record Number: No. 1122 JR/2011

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

No further Redaction Needed

Between:

PL

Applicant

And

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

Respondents

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

HUMAN RIGHTS CMSN ACT 2000 S8(H)

RSC O.60

RSC O.60A

MENTAL HEALTH ACT 2001 S3

MENTAL HEALTH ACT 2001 S23

MENTAL HEALTH ACT 2001 S24

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)(E)

R v BOURNEWOOD COMMUNITY & MENTAL HEALTH NHS TRUST, EX PARTE L 1999 1 AC 458 1998 3 WLR 107 1998 3 AER 289

L (H) v UNITED KINGDOM 2005 40 EHRR 32 17 BHRC 418 81 BMLR 131

MENTAL HEALTH ACT 1983 (UK)

M v UKRAINE UNREP ECHR 19.4.2012 2012 ECHR 732 (APPLICATION NO 2452/04)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)

G v E & ORS 2010 2 FLR 294 2010 FAM LAW 703 2010 MHLR 364 2010 AER (D) 120 (APR) 2010 EWHC 621 (FAM)

STORCK v GERMANY 2006 43 EHRR 6 2005 MHLR 211

MENTAL HEALTH LAW

Detention

Human rights - European Convention - Declaration of incompatibility - Margin of appreciation - Mental health -Involuntary detention - Unlawful detention - Capacity to give informed consent to remain as a voluntary patient - G v E [2010] EWHC 621 (Fam); [2010] 1 MHLR 364; Guzzardi v Italy (1980) 3 EHRR 333; HL v United Kingdom (2005) 40 EHRR 761; JE v DE and Surrey CC [2006] EWHC 3459 (Fam); [2007] 2 FLR 1150; [2007] 1 MHLR 39; M v Ukraine (App No 2452/04) (Unrep, ECHR, 19/4/2012); R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] UKHL 24, [1999] AC 458 and Storck v Germany (2006) 43 EHRR 96 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 60 and 60A - Human Rights Commission Act 2000 (No 9), s 8 - Mental Health Act 2001 (No 25), ss 3, 23 and 24 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, articles 5 and 13 - Declaration refused (2011/1122JR - Peart J - 14/12/2012) [2012] IEHC 547

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

Facts: The plaintiff had been a voluntary patient at the respondent's hospital on the relevant dates of the 21st October 2011 and the 21st November 2011. He had earlier been detained as an involuntary patient but this was revoked when it was determined he did not have a mental disorder of the type that could warrant such detention. It was determined that the plaintiff had the capacity to decide whether or not to stay at the respondent hospital and agreed to do so as evidenced in meetings on the 17th and 21st October 2011. On the 21st November 2011, the plaintiff attempted to leave the facility by climbing a wall. Staff talked to the plaintiff and he agreed to remain once more and take medication that he had been recently refusing. On the 22nd of November, the plaintiff stated he wished to leave the hospital. The respondent hospital detained the plaintiff under section 23 of the Mental Health Act 2001 ("the 2001 Act") pending assessment for detention under section 24 of the same act.

During the assessment, the plaintiff agreed to remain at the hospital. It was therefore determined that he did not fulfil the criteria of detention under section 24 of the 2001 Act. It was clear that the plaintiff required the care of the facility and that even though he was there on a voluntary basis, if he revoked his consent, he would fall under the criteria of section 24. It was the plaintiff's contention that during the periods where he expressed a desire to leave the facility, the attempts by staff to dissuade him from leaving amounted to unlawful detentions which were breaches of the European Convention on Human Rights, namely Article 5 and 13. The situation that had been created was that he was not present in a truly voluntary capacity.

Held by Peart J that the periods of time where staff of the respondent hospital attempted to discuss the plaintiff's status at the hospital should not be seen as a period of unlawful detention. The purpose of the discussion was to decide whether the plaintiff had capacity to make a balanced decision regarding his care. It was clear that a balanced decision would lead to a willingness to remain at the facility. By giving his consent to remain at the facility, he was showing he had the necessary capacity. Even if the discussions were deemed to be detention, they were short in nature and permissible in the circumstances considering that it wasn't the case that their sole purpose was to detain the plaintiff against his will.

It was further held that in order to show unlawful detention, it had to be shown that the applicant had not validly consented to his confinement. In the present case the applicant had continually shown capacity and consented to voluntary care. Where the applicant had shown a willingness to revoke his consent, discussions inevitably resulted in him balancing the relevant factors and deciding against that. It had therefore not been shown that the applicant had not validly consented to his confinement.

Application refused

Judgment of

Mr Justice Michael Peart

1 Arising from my judgment in this case delivered on the 24^th January 2012 the applicant seeks declarations that certain 'rules of law' emanating from my judgment are incompatible with the provisions of the European Convention on Human Rights, and in particular Articles 5 and 13 thereof. The applicant is supported in his application by the Human Rights Commission who sought and was granted leave to be joined as amicus curiae in accordance with the provisions of section 8(h) of the Human Rights Commission Act, 2008. The submissions, both written and oral by Feichín McDonagh SC for the applicant, and Michael Lynn BL for the Human Rights Commission have been of great assistance, as have those of Mary O'Toole SC on behalf of the Attorney General upon whom Notice was served pursuant to Order 60 and 60A of the Rules of the Superior Courts.

2 On the relevant dates, the 21^st October 2011 and 21^st November 2011 the applicant was a voluntary patient, at least as defined, at the respondent hospital. While he had earlier been the subject of a detention order dated 14^th September 2011, which was renewed on the 27^th September 2011, that order was revoked on the 12 October 2011 as the consultant psychiatrist responsible for the care and treatment of the applicant formed the view on that date that the applicant no longer met the criteria for involuntary detention, since he was not considered to be suffering from a mental disorder as defined by Section 3 of the Act..

3 Thereafter, the applicant resumed his status as a voluntary patient, both as defined, and by expressing a willingness to remain in the hospital and to be treated as a voluntary patient. His consultant psychiatrist was satisfied from a discussion with the applicant on that date that the applicant was able to balance the benefits and disadvantages of remaining as a voluntary patient in the secure Special Care Unit within the hospital, and that he had capacity to choose to remain as a voluntary patient there and did so. This sequence of events is set forth in more detail in my said judgment.

4 The evidence before me in relation to the 21^st October 2011 is set forth in my judgment. But it is notable that on the 17^th October 2011 and again on the 21^st October 2011 the applicant had attended a multi-disciplinary meeting in the hospital, and is noted as having expressed at both meetings his willingness to remain in the hospital as a voluntary patient, following his care plan and his remaining in the Special Care Unit.

5 On the 21^st November 2011 the applicant again expressed a strong wish to leave the hospital, and in fact made attempts to do so by trying to jump over the garden wall. Again he was spoken to by staff and agreed to remain. Those events are set forth in detail in my said judgment. On the following day Dr O'Ceallaigh saw the applicant and they discussed the efforts by the applicant to leave the hospital the previous day. The applicant explained his reason for so doing, as set forth in my judgment, but agreed to resume his medication, and remain on a voluntary basis. It appears that for some days prior to these events the applicant had not been accepting his medication and this was thought to have led to a deterioration in his condition. But on the 22^nd November 2011 he appears to have again expressed to Dr O'Ceallaigh that he wanted to leave. Another discussion ensued with Dr O'Ceallaigh at which the applicant stated that he was withdrawing his consent to remaining on a voluntary basis. This led to Dr O'Ceallaigh invoking the applicant under section 23 of the Act of 2001 so that an assessment could be carried out in order to detain him under section 24 of the Act. That second assessment was carried out by Dr Power who by the time he saw the applicant was not of the view that the applicant met the criteria for the purposes of being detained under section 24 of the Act. It appears that when Dr Power assessed the applicant, the applicant was agreeing to take his medication and also to remaining in the Special Care Unit, all with a view to a gradual move to a less restrictive environment. Again, Dr O'Ceallaigh was satisfied that the applicant had capacity to form a view as to his consent to remaining on a voluntary basis.

6 It is quite clear that were it not for the fact that the applicant was considered capable of giving a lawful consent to remaining...