A.M v Kennedy and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 08 February 2013
• Neutral Citation: [2013] IEHC 55
• Court: High Court
• Date: 08 February 2013

[2013] IEHC 55

THE HIGH COURT

97 1A/2012

1370 P/2013

M (A) v Kennedy & Ors

IN THE MATTER OF SECTION 73 OF THE MENTAL HEALTH ACT, 2001

AND IN THE MATTER OF AN INTENDED ACTION

Between:

A.M.

Intended Plaintiff

-and-

HARRY KENNEDY (In his role as Clinical Director of the Central Mental Hospital)

Intended First Named Defendant

-and-

THE MENTAL HEALTH COMMISSION

Intended Second Named Defendant

-and

THE HEALTH SERVICE EXECUTIVE

Intended Third Named Defendant

MENTAL HEALTH ACT 2001 S73

MENTAL HEALTH ACT 2001 S73(1)

MENTAL HEALTH ACT 2001 S73(1)(B)

CONSTITUTION ART 40.4

M (A) v KENNEDY 2007 4 IR 667 2007/37/7701 2007 IEHC 136

MENTAL TREATMENT ACT 1945 S189

MENTAL HEALTH ACT 2001 S72(5)

MENTAL HEALTH ACT 2001 S15(2)

MENTAL TREATMENT ACT 1945 S260

MENTAL TREATMENT ACT 1945 S260(1)

BLEHEIN v MIN FOR HEALTH & ORS 2009 1 IR 275 2008 2 ILRM 401 2008/3/594 2008 IESC 40

P (M) v HEALTH SERVICE EXECUTIVE & ORS UNREP MACMENAMIN 27.4.2010 2010/43/10768 2010 IEHC 161

P (M) v AG & ORS UNREP MACMENAMIN 21.12.2010 2010/43/10755 2010 IEHC 473

L (A) v CLINICAL DIRECTOR OF ST PATRICKS HOSPITAL & MENTAL HEALTH CMSN 2010 3 IR 537 2010/27/6736 2010 IEHC 62

MELLY v MORAN & NORTH WESTERN HEALTH BOARD UNREP SUPREME 28.5.1998 1998/26/10299

MACAULEY v MIN FOR POSTS & TELEGRAPHS 1966 IR 345

BYRNE v IRELAND & AG 1972 IR 241

MESKELL v CORAS IOMPAIR EIREANN 1973 IR 121

MENTAL HEALTH

Leave

Intended claim - Reasonable care - Detention - Unlawful - False imprisonment, trespass to person, breach of statutory duty, breach of constitutional rights and negligence - Burden of proof - Whether no reasonable grounds for contending that respondents acted without reasonable care - Whether deliberate action carried out on basis of bona fide but mistaken view of law incapable of being described as having been done without reasonable care - Whether second respondent having no responsibility for actions of Mental Health Tribunals - Blehein v Minister for Health and Children [2008] IESC 40, [2009] 1 IR 275 considered - Mental Health Act 2001 (No 25), s 73 - Leave granted (2012/97IA & 2013/1370P - O'Malley J - 8/2/2013) [2013] IEHC 55

M(A) v Kennedy

Facts: The applicant had been detained on the 24 ^th August 2005 for mental health treatment on foot of a Temporary Admission Order pursuant to the Mental Treatment Act 1945. His detention was extended by a further six months on two following occasions on the 24 ^th February 2006 and the 18 ^th August 2006. It was determined by hospital staff which included the intended first named defendant that whilst progress had been made, it was in the best interests of the applicant to continue the arrangement for further treatment. As the provisions of the Mental Health Act 2001 were due to come into force shortly after the second extension, the applicant”s case details were passed to the Mental Health Commission so that it could be considered by a Mental Health Tribunal in due course. A Tribunal date was set for the 20 ^th February 2007. On the 19th February, the applicant was examined and a recommendation was given that he be detained for a further three month period pursuant to s.15 (2) of the Mental Health Act 2001. The Tribunal carried this recommendation at the hearing.

The applicant brought the matter to the High Court alleging that as the second 6 month extension was made on the 18 ^th August 2006, it would have expired on the 18 ^th February 2007 therefore he had been unlawfully detained at the time of his examination and Tribunal hearing. He had made this point to the Tribunal who had rejected this assertion stating that the second six month period extension began on the expiry of the last i.e. the 24 ^th August 2007. The applicant”s case was upheld by the court. In this application, the applicant sought leave as required by s. 73 of the Mental Health Act 2001 to issue civil proceedings against the intended defendants on the basis that they had been negligent in discharging their duty of care to him which led to his unlawful detention.

Held by O”Malley J that at this stage, the court only had to determine whether to grant the applicant leave to proceed and s. 73(1) of the Mental Health Act 2001 made it clear that leave could only be refused on the basis that the proceedings were determined to be vexatious or frivolous, or that there was no reasonable grounds to show the defendants had acted in bad faith or without reasonable care. The intended defendants claimed that it was their genuine belief that two periods of detention could not overlap and so they believed that at the time of the applicant”s examination and Tribunal hearing, he was under lawful detention.

It was held that the argument advanced by the intended defendants that they were immune from the applicant”s proceedings on the basis that they had made a bona fide misinterpretation of the legislation was not a defence based on relevant authority. Indeed, to allow mental health authorities such protection in light of constitutional rights being breached would put them in a more advantaged position than that of other state agents. When the applicant”s case was passed to the commission for consideration by the Tribunal, it was arguable that they owed a duty of care to ensure the correct date for the expiry of the detention was given. Leave would therefore be granted to allow the applicant”s case to proceed.

Application granted.

1 Judgment of Ms. Justice Iseult O'Malley delivered on the 8th February, 2013

Introduction

2 1. In this application leave is sought, as required by the provisions of s.73 of the Mental Health Act, 2001 to institute civil proceedings against the intended defendants in relation to certain acts done in purported pursuance of that Act. Section 73(1) provides that such leave is not to be refused unless the Court is satisfied

3 (a) that the proceedings are frivolous or vexatious; or

4 (b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.

5 The respondents to the application are the proposed defendants, all of whom base their opposition to the granting of leave on sub-paragraph (b). They do not contend that the proceedings are frivolous or vexatious. The applicant does not make any allegation of bad faith and the only issue to be determined therefore is whether the respondents can at this stage discharge the onus of establishing that there are no reasonable grounds for contending that they acted without reasonable care.

6 2. The draft plenary summons and statement of claim proposed to be issued claim damages (including, if the court sees fit, aggravated and/or exemplary damages) for false imprisonment, trespass to the person, breach of statutory duty, breach of constitutional rights and negligence with respect to his detention from the 18 ^th of February, 2007 until the 24 ^th of April, 2007. In proceedings brought by the applicant under Article 40.4 of the Constitution, the High Court (Peart J) has already found that his detention during that period was unlawful - see A.M. v. Kennedy [2007] 4 IR 667.

7 3. The particulars in the draft statement of claim allege, inter alia, that the intended defendants negligently failed to carry out their statutory functions in a competent manner and negligently failed to release the plaintiff when required by law at the expiration of his treatment order. In so doing, it is pleaded, they breached his rights under the Constitution and the European Convention on Human Rights.

8 4. There is a separate claim against the third named intended defendant for damages for negligence and breach of statutory duty in respect of the transfer of the plaintiff to the Central Mental Hospital. It is pleaded that the transfer was not necessary, caused him distress and stigmatised him in his locality. However, at the hearing of this application it was indicated to the court that this aspect of the applicant's claim was not being pursued with any great vigour.

Background

9 5. The applicant was originally detained in Our Lady's Hospital, Navan on the 24 ^th August, 2005 on foot of a Temporary Admission Order made pursuant to the provisions of the Mental Treatment Act, 1945. He was subsequently transferred to the Central Mental Hospital on the 20 ^th October, 2005. The reasons for the transfer was that he had absconded from Our Lady's twice, once by breaking a window, and had seriously injured another man while at large. The hospital records show a real concern that Our Lady's was not an appropriate place within which to detain and treat him.

10 6. The applicant's detention in the Central Mental Hospital was renewed under s. 189 of the same Act, as amended by the provisions of the Mental Treatment Act, 1961, for a further six months on the 24 ^th February, 2006. Section 189 permitted a renewal for a period not exceeding six months. The renewal was directed by Dr. Anne Jackson, the Clinical Director of Our Lady's Hospital, who continued to be the "responsible consultant psychiatrist" in the applicant's case. As was the practice at the time, Dr. Jackson endorsed her decision in handwriting on the original order for detention by the words "extended for a further period of six months from the 24/02/06". No criticism is made of this renewal in the current application.

11 7. It is deposed by Dr. Kennedy that the applicant continued to make some progress over the next few months but that in late June it was decided at a case conference that it would be in his best interests to remain in the Central Mental Hospital for a further period of time. Subsequently, on the 18 ^th August, 2006 Dr. Jackson again endorsed the form, this time writing the words "extended for a further period of six months from the 18/8/06".

12 8. It is important...