A.M. v Harry Kennedy, Clinical Director of the Central Mental Hospital

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 24 April 2007
• Neutral Citation: [2007] IEHC 136
• Docket Number: [2007 No. 330 SS]
• Court: High Court
• Date: 24 April 2007

M (A) v KENNEDY (CLINICAL DIRECTOR OF CENTRAL MENTAL HOSPITAL

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF

THE CONSTITUTION

BETWEEN:

A. M.

APPLICANT

AND

HARRY KENNEDY, CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL

RESPONDENT

AND

HEALTH SERVICE EXECUTIVE MENTAL HEALTH COMMISSION MENTAL HEALTH TRIBUNAL

NOTICE PARTIES

[2007] IEHC 136

Record Number: No. 330 SS/2007

THE HIGH COURT

Abstract:

Mental health - Detention in Central Mental Hospital - Whether detention unlawful - Whether detention order of no effect given expiration of previous order - Mental Treatment Act 1945 - Mental Health Act 2001

The applicant contended that he was unlawfully detained in the Central Mental Hospital. He contended that a renewal order had extended his detention period to the 18th February, 2007 and therefore a further renewal order made on the 19th February, 2007 was of no effect. All medical opinion available was of the view that the further detention of the applicant was needed for his own safety and the safety of others.

Held by Peart J. that the applicant was unlawfully detained. The detention order was one which could not be lawfully made given the expiration of the previous order on the previous day and the affirmation of that order by the Tribunal was of no effect. The Court would not make any order for release until the parties had an opportunity to decide how the applicant's further detention in accordance with law could be achieved.

Reporter: R.W.

MENTAL TREATMENT ACT 1945 S184

MENTAL HEALTH ACT 2001

MENTAL HEALTH ACT 2001 PART II

MENTAL HEALTH ACT 2001 (COMMENCEMENT) ORDER 2006 SI 411/2006

MENTAL TREATMENT ACT 1945 S185

MENTAL HEALTH ACT 2001 S72(5)

MENTAL HEALTH ACT 2001 S72(2)

MENTAL HEALTH ACT 2001 S72(3)

MENTAL TREATMENT ACT 1945 S189(1)(b)(i)

MENTAL TREATMENT (DETENTION IN APPROVED INSTITUTIONS) ACT 1961 S18

DPP v MOOREHOUSE 2006 1 IR 421 2006 1 ILRM 103 2005 21 4245 2005 IESC 52

CLARKE, IN RE 1950 IR 235

GOODEN v ST OTTERAN'S HOSPITAL 2005 3 IR 617

R (M) v BYRNE (ADMINISTRATOR ) & FLYNN (CLINICAL DIRECTOR SLIGO MENTAL HEALTH SERVICES) UNREP O'NEILL 2/3/2007 2007 IEHC 73

MENTAL TREATMENT ACT 1945 S189(1)

MENTAL TREATMENT ACT 1945 S189(1)(a)(i)

MENTAL TREATMENT ACT 1945 S189(1)(b)

1 Mr Justice Michael Peart delivered on the 24th day of April 2007 :

2 This application on behalf of the applicant is brought for the purpose of an inquiry by the Court into the lawfulness of his detention at the Central Mental Hospital at Dundrum, Dublin. The affidavit grounding the application is sworn by Mr Mark Felton, a solicitor appointed on the 14th February 2007 by the Mental Health Commission to represent him at a hearing before the Mental Health Tribunal which was to take place on the 20th February 2007.

3 It appears that the detention of the applicant commenced at Our Lady's Hospital, Navan by Temporary Admission Order made on the 24th August 2005 under the provisions s. 184 of the Mental Treatment Act, 1945, as amended.

4 Having absconded from that hospital during treatment, he was transferred to the Central Mental Hospital, since Our Lady's Hospital, Navan did not have the capacity to provide the specialist treatment which it was felt that he needed at that time. Upon the expiration of the six month period of that detention on the 24th February 2006, it was renewed by order for a further period of six months.

5 This extension would have endured until the 24th August 2006. But it appears that on the 18th August 2006 as the previous extension was nearing its expiration, a decision was taken that a further renewal was needed, and there is an endorsement on the Form 6 which reads "extended for a further period of six months from 18/8/06" and that is signed by Dr Anne Jackson, Consultant.

6 Dr Harry Kennedy, the Clinical Director of the Central Mental Hospital has averred in his affidavit that the practice at the hospital is that the endorsement is entered on the Form 6 in advance of or at the time of the expiration of the period of detention, and that this Form 6 was not to commence operation until the 24th August 2006, and further that it has always been his belief that one period of detention could not overlap another. The reference to "18/8/06" may simply have been an error, but one way or another the question is whether the applicant's renewal endured only up to the 18th February 2007, being six months from the date set forth in the endorsement, or whether it in fact endured until the 24th February 2007 since the previous period of renewal made on the 24th February 2006 was to last up to the 24th August 2006. If the latest renewal endured only to the 18th February 2007, then the Tribunal ought to have carried out its review prior to that date. But if it endured until the 24th February 2007, then the Tribunal was entitled on the 20th February 2007 to review the detention.

7 All medical opinion available to the Court is of the view that the further detention of the applicant is needed for his own safety and the safety of others, and that he suffers from schizophrenia and needs in-patient treatment.

8 Mr Felton ascertained from the applicant when he spoke to him on the 20th February 2007 that he had been reviewed on the 19th February 2007 and had been handed some paperwork in relation to a renewal order. The Court has been shown a renewal order made on the 19th February 2007 under the Mental Health Act, 2001 and signed by Dr Anne Jackson. This renewal order is for a period of three months. Mr Felton submitted to the Tribunal on the 20th February 2007 that since the period of detention for six months from the 18th August 2006 had expired on the 18th February 2007, the Tribunal had no jurisdiction to review the detention. The Tribunal rose to consider the position but came to the conclusion that since the detention had commenced on the 24th August 2005, and had run from that date with a number of required renewals, it was clear that the renewal made on the 18th August 2006 was clearly intended to run from the 24th August 2006 and not from the 18th August 2006, and that therefore on the 20th February 2007 the Tribunal was entitled to review it. Having heard the medical evidence the Tribunal affirmed the Renewal Order made on the 19th February 2007. A full note of the Tribunal's decision has been made available to the Court.

9 On the 9th March 2007 the Tribunal again sat in order to review the status of the renewal order dated 19th February 2007. Mr Felton was notified of that hearing. However it appears from Mr Felton's affidavit that at that sitting it was indicated to him by the Tribunal that since the previous sitting of the Tribunal had affirmed the detention of the applicant "it seemed in all the circumstances that the matter was now of such complexity that the intervention of this Honourable Court was warranted in order to clarify the situation". The exhibited record of the Tribunal's decision made on the 9th March 2007 states simply that:

"Having reviewed the record of Mental Health Tribunal proceedings of the 20/02/07, we are of the view that the renewal order of the 19/02/07 was affirmed by that Tribunal and consequently we have no jurisdiction to review that order."

10 An affidavit sworn by Bríd Clarke, Chief Executive of the Mental Health Commission who is a Notice Party to this application has averred that following the coming into operation of Part 2 of the Mental Health Act, 2001 by Statutory Instrument 411 of 2006, it received details from relevant approved centres of detention as to persons detained under sections 184 and 185 of the Mental Treatment Act, 1945, and that in accordance with s, 72(5) of the 2001 Act the respondent hospital made returns to the Commission in relation to all patients detained there, including the applicant herein. She states that on the 2nd November 2006 the Commission received a Form 24 in relation to the applicant. There is a "received" stamp appearing on this form which bears the date "04 November 200 2006" but Ms. Clarke states that this in fact refers to the date on which the details contained in the form were entered on the computer system at the Commission's offices as opposed to the actual date of receipt of the form. That Form 24 states, inter alia, that the date of commencement of the applicant's detention was "24/08/2005" and states the date of expiry of his detention as "18/02/2007". She makes the point in her affidavit that this form was completed by the Clinical Director of Our Lady's Hospital, Navan and not by the Clinical Director of the respondent hospital, the Central Mental Hospital, where the applicant was in fact detained. She states in that regard: "It was not therefore taken into account by the Commission". She goes on to state that on the 2nd November 2006 the Commission received a second Form 24 in relation to the applicant - this time from the Central Mental Hospital, Dundrum. That form is exhibited and states thereon the detention of the applicant commenced on the 24th August 2005 and that the date of expiry of the detention order is "24/02/2007". She states further that she believes that in view of the "apparent error as regards the date of expiration of the detention order" the director of the Mental Health Tribunal telephoned the Clinical Director of the Central Mental Hospital, Dr Kennedy and informed the latter that the form appeared to be incorrect, and that Dr Kennedy agreed to review the matter. This is not referred to in Dr Kennedy's affidavit specifically, but Ms. Clarke states that in any event a third Form 24 was received from the Central Mental Hospital by fax on the 13th November 2006 and on which the date of expiry is stated to be "24/02/07". She states that on the basis of this third Form 24 the Commission...